This post examines a recent opinion from the Court of Appeals of Ohio – 8th District: State
v. Young, 2016 WL 1295951 (2016). The court begins by explaining that
Defendant-appellant, Leonard Young
(`Young'), appeals from his conviction for failure to provide notice of change
of address in violation of [Ohio Revised Code §] 2950.05(E)(1). For the
reasons set forth below, we conclude that because Young did include the address
that is the subject of the conviction as a `secondary address’ on Cuyahoga
County's Sex Offender Registration form (“registration form”), there is
insufficient evidence to support the conviction. Therefore, we reverse and
remand the matter with instructions to vacate the conviction.
State v. Young, supra.
The opinion goes on to explain that in 2006, Young
was convicted of rape and was
classified as a sexually oriented offender. Following his release from a
seven-year prison term, Young was notified by the Cuyahoga County Sheriff's
Department that he is required to register as a sex offender.
As a registered sex offender, Young was
required to register his address annually, for a period of ten years, with the
sheriff's department of his county of residence. It is undisputed that
Young completed the registration form on June 12, 2014, listing the Lutheran
Metropolitan Ministries men's shelter, located at 2100 Lakeside Avenue
(`homeless shelter’), as his `current address,’ and an apartment located at
1369 West 112th Street as his `secondary address.’
State v. Young, supra.
The court goes on to explain that
[t]he registration form states:
6.) Current Address 2100
Lakeside Cleveland 44114
* * *
12.) Secondary Address 1369 W.
112 # 307 Cleveland, Oh 44102
The state alleges that Young stopped
residing at the homeless shelter and moved into the apartment on June 22, 2014.
Young waived his right to a jury trial, and the matter proceeded to a bench trial on April 9, 2015.
State v. Young, supra.
The court then explains that
[a]t trial, Mike Moguel (`Moguel’),
director of operations for the homeless shelter, testified that the homeless
shelter has an occupancy rate of 365, but can provide shelter for up to 420
individuals because it has offsite housing with an additional 50 beds. The
homeless shelter keeps track of the individuals who spend the night there by
using a computerized system that is based upon biometric scans of residents' thumb prints. Individual
attendance is then tracked using a unique record number. The average length of
stay is 32 days.
Moguel authenticated the homeless
shelter's computer printout of the bed records pertaining to Young's attendance
from May 2014 through September 2014. According to Moguel, on May 16, 2014,
Young was assigned to a bed in the sojourn dormitory. On May 26, 2014, he was
on the waiting list for a bed in the sojourn dormitory, but left the shelter
before a bed became available. On May 30, 2014, he stayed in the mat room. On
June 1, 2014, he was on the waiting list, but left before a bed became
available. The attendance records further indicated that Young stayed at the
homeless shelter on June 2, 3, 13, and 14, 2014, and did not return again until
September 17, 2014.
State v. Young, supra.
The opinion goes on to state that
Deputy Sheriff Detective Susan DeChant .
. . of the Cuyahoga County Sheriff's Department testified that in 2014, she was
in charge of sex offender registration compliance, and worked in the
registration office. According to Detective DeChant, at the initial
registration, the reporting requirements are explained to the offender. The
offenders are required to complete a form and provide their name, social
security number, date of birth, address, and other identifying information.
Insofar as it pertains to the offender's address, the reporting form contains
blanks where the offender is to list his or her `current address’ and
`secondary address.’ Although Detective DeChant did not testify to the precise
instructions given to Young on this particular matter, she explained the difference
between an offender's `current address’ and `secondary address’ as follows:
`Whenever they have a secondary address, the
registration office will explain to them this is just if you have the occasion
to be someplace, but the majority of the time you have to be at your current
residence.’
Detective DeChant admitted, however,
that the sheriff's department does not verify whether an offender is at his
`secondary address,’ because `the majority of the time [the offender has] to
stay at their current residence.’ Detective DeChant acknowledged that the Ohio
Attorney General's Office suggested that the registration form include a
provision for `secondary addresses,’ but only Cuyahoga county asks for a
`secondary address.’
Detective DeChant next testified that
Young has been registering yearly since 2012. On his June 12, 2014
registration, which is the subject of the indictment, Young indicated that his `current address' was 2100 Lakeside (the homeless shelter). On the part of the
form marked `secondary address,’ Young wrote, `1369 W. 112, # 307, Cleveland
44102.’ In undertaking a random verification of Young's address, she learned
that he last stayed at the homeless shelter on June 20, 2014. She insisted that
because Young had not advised the sheriff's department that he had moved from
the homeless shelter listed as his `current residence’ and into the `secondary
address,’ he was no longer in compliance with his registration duties.
State v. Young, supra.
The Court of Appeals then explained that
[f]ollowing the
presentation of the state's case, the trial court denied Young's motion for
acquittal. Young testified on his own behalf. He testified that he began living
at the homeless shelter upon his release from prison. During his June 12, 2014
registration, he listed the homeless shelter as his `current address,’ and also
noted `1369 West 112th Street, # 307,’ in a section of the form directly below
`current address,’ marked `secondary address.’ He stated that he planned to
move into the apartment permanently, but at the time of his registration, the apartment
had various habitation issues that kept him from staying there. He explained
that he had first stayed there one night in May 2014, but the housing issues
were not rectified. He then stayed there regularly in July and August 2014, but
it reminded him too much of prison, so he returned to the homeless shelter in
September 2014.
On May 1, 2015, the
trial court found Young guilty of failure to provide notice of change of
address, as charged in the indictment. The court sentenced Young to nine months
in prison and up to three years of post release control sanctions.
State v. Young, supra.
Young appealed, asking the Court of Appeals to consider “the
following errors” in the proceeding below:
Assignment of Error
One
It was error for the trial court to
find [Young] guilty of a violation of § 29050.05 (failure to provide
notice of change of address) based upon questionable so-called `bed records’
and other evidence insufficient to convict [Young] thereby depriving him of his
rights to due process guaranteed by our Federal and State Constitutions.
Assignment of Error Two
The trial court erred in adjudicating a
strict liability offense by failing to consider how law enforcement and those
charged with enforcing statutory registration requirements upon persons
classified as sexually oriented offenders do so by use of procedures and
materials that lead to, or contribute to, criminal violations by such
offenders.
State v. Young, supra.
The Court of Appeals explained that, “[i]n In his first
assignment of error, Young argues that the trial court erred in admitting the
homeless shelter `bed records’ into evidence, and that there is insufficient
evidence to support his conviction for failure to provided notice of a change
of address.” State v. Young, supra. It
addressed the arguments in this order.
As to the first issue, the opinion explains that
[w]ith regard to the admission of the
homeless shelter `bed records,’ Young complains that no testimony was offered
to explain the biometric scanning
procedure, its reliability, and the attendance records derived from those
scans. He also complains that the records contain inadmissible hearsay.
We note, however, that Young failed to
raise this issue at trial, so he has waived all but plain error. See Crim.R.
52(B). Under Crim.R. 52(B), `[n]otice of plain error * * * is to be taken with
the utmost caution, under exceptional circumstances and only to prevent a manifest
miscarriage of justice.’ State v. Long, 53 Ohio St.2d 91, 372
N.E.2d 804 (1978). . . . Crim.R. 52(B) places the following three limitations
on a reviewing court's decision to correct an error despite the absence of a
timely objection at trial: (1) there must be error; (2) the error must be an
`obvious’ defect in the trial proceedings; and (3) the error must have affected
“substantial rights.” State v. Barnes, 94 Ohio St.3d 21, 27,
2002–Ohio–68, 759 N.E.2d 1240.
We further note that `[t]he admission
or exclusion of relevant evidence rests within the sound discretion of the trial
court.’ State v. Sage, 31 Ohio St.3d 173, 510 N.E.2d 343
(1987), paragraph two of the syllabus.
Pursuant to Evid.R. 803(6),
business records are an exception to the hearsay rule.
`To qualify for admission under Rule 803(6), a business record must manifest four essential elements: (i) the record
must be one regularly recorded in a regularly conducted activity; (ii) it must
have been entered by a person with knowledge of the act, event or condition;
(iii) it must have been recorded at or near the time of the transaction; and
(iv) a foundation must be laid by the `custodian’ of the record or by some
`other qualified witness.’
State v. Davis, 116 Ohio
St.3d 404, 2008–Ohio–2, 880 N.E.2d 31, ¶ 171, quoting Weissenberger, Ohio
Evidence Treatise 600, Section 803.73 (2007).
In this matter, the record demonstrates
that all four of the requirements for admission of the records under Evid.R.
803(6) were met, so we find no abuse of discretion in the admission of
this evidence. We further note that this evidence is consistent with Young's
own testimony regarding his whereabouts. Therefore, we find no plain error.
State v. Young, supra.
The Court of Appeals then took up the “sufficiency of the evidence” issue, noting that a
challenge to the sufficiency of the
evidence supporting a conviction requires a determination of whether the state
has met its burden of production at trial. State v. Thompkins, 78
Ohio St.3d 380, 390, 1997–Ohio–52, 678 N.E.2d 541. When reviewing sufficiency
of the evidence, an appellate court must determine `”whether, after viewing the
evidence in a light most favorable to the prosecution, any rational trier of
fact could have found the essential elements of the crime proven beyond a reasonable doubt.”’ State v. Leonard, 104 Ohio St.3d 54, 2004–Ohio–6235,
818 N.E.2d 229, ¶ 77, quoting State v. Jenks, 61 Ohio St.3d
259, 574 N.E.2d 492 (1991), paragraph two of the syllabus. In a sufficiency
inquiry, an appellate court does not assess whether the state's evidence is to
be believed, but whether if believed, the evidence admitted at trial supported
the conviction. Thompkins; Jenks at paragraph two of the
syllabus.
Offenders such as Young, who were convicted of sexually oriented
offenses prior to January 2008, are required to register their addresses with the
sheriff of the county in which they reside. R.C. 2950.05. They must also `provide
written notice of any change of residence address,’ and also shall register
`any new address.’ Id. Under this statute, an offender
violates the registration law by: (1) failing to register one's address in the
county where the offender resides within five days of coming into the county;
(2) failing to register one's address in the county where the offender is
temporarily domiciled for more than five days; or (3) failing to register a new
address where the defendant resides or is temporarily domiciled. State
v. Ballard, 7th Dist. Columbiana No. 08CO13, 2009–Ohio–5472, ¶
92; State v. Sommerfield, 3d Dist. Union No. 14–05–23,
2006–Ohio–1420, ¶ 9; State v. Curtis, 8th Dist. Cuyahoga No.
89412, 2008–Ohio–916.
State v. Young, supra.
It went on to explain that the Supreme Court of Ohio
has held that
there is no scienter requirement for the offense because the act of failing to
register alone, without more, is sufficient to trigger criminal punishment
under R.C. 2950.99. State v. Cook, 83 Ohio St.3d 404,
409, 418, 1998–Ohio–291, 700 N.E.2d 570. Strict liability offenses impose
liability for simply doing a prohibited act. State v. Johnson, 128
Ohio St.3d 107, 2010–Ohio–6301, 942 N.E.2d 347, ¶ 17. Similarly, failure to
provide notice of `change’ of address for allegedly moving to a `new' address,
in violation of R.C. 2950 .05, is a strict liability offense. State v.
Stewart, 8th Dist. Cuyahoga No. 94863, 2011–Ohio–612, ¶ 17,
citing State v. Beasley, 8th Dist. Cuyahoga No. 77761, 2001
Ohio App. LEXIS 4353 (Sept. 27, 2001). See also State v. Combs, 12th
Dist. Brown No. CA2013–08–008, 2014–Ohio–2117. `An address changes when one no
longer lives at that address.’ Beasley at ¶ 6.
State v. Young, supra.
The court also noted that,
[i]n enacting R.C. Chapter 2950,
however, the legislature chose not to provide a specific definition of the term
`residence.’ Combsat ¶ 9. The term is therefore construed with its
ordinary meaning. Id.; Sommerfield at ¶ 18.
The Combs court
explained:
Black's Law Dictionary provides a
helpful distinction between the terms residence and domicile:
`Residence usu[ally] just means bodily
presence as an inhabitant in a given place; domicile usu[ally] requires bodily
presence plus an intention to make the place one's home.’ Black's Law
Dictionary (9th Ed.2009). * * * An individual can only have one
domicile, but he can have more than one residence. * * *
`Secondary address’ is also
undefined in the statutory scheme.
State v. Young, supra.
The Court of Appeals then pointed out that
[i]n this matter, the record indicates
that Young, who is required to register yearly, completed the form by providing
both the `current address’ of the homeless shelter and the `secondary address’
of his West 112th Street apartment. The prosecuting attorney informed the court
at oral argument that the section for a `secondary address’ was included at the
suggestion of the Ohio Attorney General, and that Cuyahoga county is the only
county in the state to include it. According to Detective DeChant, the
secondary address is provided if the offender `may have an occasion to stay at
another address,’ whereas the primary address is `where the offender spends the
majority of his time.’ Nonetheless, the term is undefined on the form and
within the statutory reporting law scheme. In addition, it is undisputed that
in undertaking random address verifications, the deputies do not check the
secondary addresses.
In light of all of the foregoing,
Young's conviction for failure to report a change of address, which is based on
his move into the West 112th Street apartment Young identified as his
`secondary address,’ is not supported by sufficient evidence. The state insists
that Young violated his reporting duties when he moved from his `current
address,’ identified as the homeless shelter, and into the apartment,
identified as his `secondary address.’ Nonetheless, the term `secondary
residence’ is not included within the statutory reporting scheme. We recognize
that `an offender's acquisition of a second residence may be a change of
address that triggers the notice requirements under R.C. 2950.05,’ and `[r]egistration
of a single residence address gives rise to the impression that an offender has
a single residence.’ Combs, 12th Dist. Brown No.
CA2013–08–008, 2014–Ohio–2117, ¶ 10.
Here, however, Young provided candid,
forthright, and accurate information and met his reporting requirements herein
by listing all addresses where he resided. The state had actual notice of
Young's address during the entire reporting period. There was no `change’ of
address, such to trigger the imposition of strict liability under R.C.
2950.05(E). Young did not move to a `new address,’ or move out of a reported
address, and did not commit any act that would trigger a duty to apprise the
sheriff of a change in information required to be reported.
The first assignment of error is well
taken.
State v. Young, supra.
The court then took up Young’s second assignment of error:
Young argues that the term `secondary
address’ was not explained to him at the time of his registration and is not
defined in the statutory reporting scheme. He therefore asserts that strict
liability may not be imposed where, as here, an offender is at the identified
`secondary address.’
The offense of failing to provide
notice of a change of address is a strict liability offense. State v.
Blanton, 184 Ohio App.3d 611, 617, 2009–Ohio–5334, 921 N.E.2d 1103
(10th Dist.). However, it is axiomatic that revised code provisions `defining
offenses and penalties shall be strictly construed against the state, and
liberally construed in favor of the accused.’ R.C. 2901.04(A). Further, in
enacting R.C. Chapter 2950, the legislature did not provide a specific
definition of the term `residence,’ so this term is given its ordinary
meaning. Combs at ¶ 9. The term `secondary residence’ is not
included within the reporting scheme.
The prosecuting attorney informed this
court at oral argument that the section for a `secondary address’ was included
at the suggestion of the Ohio Attorney General, and that Cuyahoga county is the
only county to include it. The term `secondary address’ is not defined on the
registration form, however. Detective DeChant testified that a secondary address
is provided if the offender `may have an occasion to stay at another address,’
whereas the primary address is where the offender spends `the majority of his
time,’ but the deputies are not required to go to the offender's secondary
address to verify that there has been accurate registration. Had they done so
in this instance, they would have learned that Young had provided them with
accurate information. By application of the foregoing, we conclude that where,
as here, the offender is accused of moving into the `secondary address’ that
has actually been reported on the registration form, the offender may not
be convicted of the
strict liability offense of failure to provide notice of a change of address.
The second assignment of error is well
taken. Judgment is reversed, and the matter is remanded with instructions to
vacate the conviction.
State v. Young, supra.
One of the Court of Appeals Judges dissented, explaining, in
part, that the shelter’s
bed records show that Young did not
reside at the shelter for approximately three months following his registration
in June 2014. Thus, the evidence presented at trial established that (1) Young
no longer lived at the shelter at the time Detective DeChant attempted to
verify his address, and (2) the designation of the shelter as Young's current
address was no longer accurate. Under these circumstances, I would find that
Young's address `changed,’ thereby triggering his duty to notify the sheriff's
office of this change of address.
In reversing his conviction, the
majority relies extensively on the sheriff office's `Registrant Information
Form’ containing the section marked `secondary address.’ The majority states
that it is this form that is the subject of the indictment in this case. In my
view, however, the relevant document in this matter is the `Notice of
Registration Duties of Sexual Oriented Offender or Child–Victim Offender Form’ (the
`NRD’ form”) that solely lists Young's `primary home address’ as 2100 Lakeside,
Cleveland, Ohio 44114. Significantly, the NRD form lists the `duties and
responsibilities’ of Young's registration and contains Young's signature, `acknowledg[ing]
that all of the [registration] requirements have been explained to [him]’ and
attesting that he `understand[s] that [he] must abide by all of the provisions
of the Ohio Revised Code Chapter § 2950, whether or not they have been
explained to [him].’ In contrast to the majority's holding, I believe the NRD
form is the document that triggered Young's criminal indictment in this case. .
. .
Despite the future consequences that
will result from the holding in this case, the sheriff's office's internal form
was not intended to permit a registered sex offender to come and go from
Residence A to Residence B as they wish. Similarly, I find no language
in R.C. 2950.05 to conclude, as the majority's interpretation
of Combs, 12th Dist. Brown No. CA2013–08–008, 2014–Ohio–211,
suggests, that a sexually oriented offender can have more than one address. In
my view, such a conclusion would be contrary to the public policy reasons
supporting the creation of the notification requirements by the Ohio
legislature.
I recognize that Young believed that he
was permitted to live at his new apartment without notifying the sheriff's
office based on the inclusion of the `secondary address’ section in the
Registrant Information Form used by the Cuyahoga County Sheriff's Office.
However, Young's subjective belief does not, and cannot, absolve him of his
guilt. R.C. 2950.05 is a strict liability offense that places the
burden on the defendant to comply with its notice requirements. Beasley, 8th
Dist. Cuyahoga No. 77761, 2001 Ohio App. LEXIS 4353, at * 9.
Based on the foregoing, I would find
there was sufficient evidence by which the trial court could have found the
elements of the crime proven beyond a reasonable doubt. Accordingly, I would
affirm Young's conviction.
State v. Young, supra (Gallagher,
J., dissenting).
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