Tag Archives | Sexual Offenders

OH Supr Ct: Sexual Offender May Be Convicted Where Conduct Violates Both Adam Walsh Act and Megan’s Law.

The Ohio Supreme Court considered the legitimacy of convictions of sex offenders, originally classified under Megan’s Law, who were indicted for violating the address-notification requirements of the Adam Walsh Act .  The court held that a sexual offender may be convicted where the conduct at issue—a failure to provide notice of a change of residence address—was a violation of the law under both the Adam Walsh Act and Megan’s Law.

The court also held that an offender who files an address-verification form with a sheriff under the mistaken belief that the form is required may be convicted of tampering with records if the form contains false information that was submitted with a purpose to defraud.  In other words, regardless of whether a person has a duty to file an address verification form, filing a form containing false information with the intent to defraud can be a violation of Ohio law.

The case is State v. Brunning, Slip Opinion No. 2012-Ohio-5752.

The Defendant was a registered sex offender who has been convicted of failing to provide notice of a change of address and tampering with records.  After the passage of Megan’s Law, he was classified as a sexually oriented offender,  requiring advance notice of any address change and annual address verification  for ten years following his release.

In 2008, the Adam Walsh Act repealed Megan’s Law.  The Defendant was reclassified as a Tier III sex offender by the Ohio Attorney General.

In 2010, he was charged with failure to verify his address every 90 Days, failure to provide a notice of change of residence address, and providing false information on his periodic address-verification form.

The Supreme Court considered whether the defendant’s violation of the requirement under both Megan’s Law and the AWA that he notify the sheriff of a change of residence address was valid after a prior decision holding that the reclassification provisions in the Adam Walsh Act were unconstitutional.  That decision reinstated the classifications and community-notification and registration orders imposed previously by judges upon sex offenders originally classified under Megan’s Law.

The court noted that the requirements for giving  notice of a change of residence address are the same under both versions of the law.  The court said, “Once reinstated, those orders [under Megan’s Law] operated prospectively from the time they were first instituted.  They related back to the time they were first imposed and continued in effect as if they had never been changed. . . The General Assembly certainly did not intend for sex offenders to be relieved of obligations to notify authorities of a change of address when it repealed Megan’s Law and enacted the Adam Walsh Act.”

The conviction was upheld because the defendant “remained accountable for the address-change-notification requirement in Megan’s Law.”

The court also upheld the conviction for tampering with records.  The statute provides that no person shall “Falsify, destroy, remove,  conceal, alter, deface, or mutilate any writing, computer software, data, or record . . .”  The statute was violated because he “voluntarily misled the person to whom he submitted the form.

 

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Plea is Valid Even When Sex Offender Should Be Classified under Megan’s Law, Not Adam Walsh Act

The Ohio Court of Appeals for Miami County has held that a defendant may not be classified as a sexual offender under the Adam Walsh Act if his crime occurred before the effective date of the Act.  Instead, the defendant should have been classified under Megan’s Law.

The case is State v. Cruea, 2012-Ohio-5209.

The defendant had been indicted on multiple felony sex crime charges.  He pled no contest to one count of rape and two counts of Gross Sexual Imposition and was sentenced to eight years in prison.

One of the arguments raised on appeal by the defendant was that the trial court failed to properly advise him with respect to how his no contest plea would affect his sexual offender reporting requirements.  Specifically, the defendant argued that the trial court failed to advise him of his specific reporting responsibilities once he was designated as a sexual offender.

The trial court incorrectly designated the defendant as a Tier II sexual offender under the Adam Walsh Act.  This was incorrect because the rape occurred before the Adam Walsh Act took effect.  In a previous decision, the Ohio Supreme Court had ruled that constitution prohibits the application of the Adam Walsh Act to any sex offender who committed the underlying sex offense before the Act’s effective date.

Instead, the defendant in this case should have been classified under Megan’s Law, which was in effect at the time of the offense.  Under Megan’s  Law, a sex offender classification hearing must be held to determine if a defendant convicted of a sexually oriented offense has a community reporting responsibility.   If a defendant is classified as a sexual predator, he would have community reporting responsibilities.  If a defendant is classified as a habitual sexual offender, the trial court has the discretion to make the defendant subject to community reporting responsibilities.  Finally, under Megan’s law, if the defendant is classified as a sexually oriented offender, the defendant would not have any community reporting duties.

In this case, the trial court correctly informed the defendant during his plea hearing that “based upon your classification status, the Sheriff may have to – may be required to notify victims, neighbors, schools, churches and other institutions of your name, address and the offense.”  Accordingly, the plea hearing did not violate any of the Defendant’s rights and the guilty finding was affirmed.  The case was remanded for a new a sex offender classification hearing under Megan’s law.

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Sex Offender Cannot be Convicted for Providing False Information on Initial SORN Form.

An Ohio Appeals Court has held that a sexually oriented offender cannot be convicted for failure to register when he provided false information on his initial sexual offender registration form.

The case is State v. Knox, 2012-Ohio-3821.

The defendant was convicted on two counts of gross sexual imposition in 1999.  He was sentenced to prison and classified under Megan’s Law as a sexually oriented offender.  Under Megan’s Law, he was required, among other things, to register his current address on an annual basis.

In 2008, as a result of the Adam Walsh Act, the defendant was reclassified by the Ohio Attorney General as a “Tier III” sexual offender.  Accordingly, the defendant was required to register his address every 90 days.

The defendant went to the Cuyahoga County Sheriff’s office to register.  On his form, he indicated that his address was that of the Lutheran Metropolitan Ministries Men’s Shelter.  However, according to the shelter’s records, Knox had not been present there for some time.  As a result, Knox was indicted for failure to register as a sexual offender and tampering with records.

The trial judge, after hearing the state’s evidence, correctly dismissed the charges.

The issue was whether a sexually oriented offender must put truthful information on the registration form.  The state argued that the statute “implicitly requires ‘honest’ information.”  In the view of the State, providing false information violated the registration statute.  The court disagreed.  The court wrote:

[The statute] is intended to ensure that the offender appears and completes a form for registration; if the offender does not, he or she is subject to prosecution for the failure.  The trial court thus correctly interpreted R.C. 2950.04(C) when it determined that “registration is complete” with only the physical action of handing a filled-out form to the sheriff.

The court also held that the tampering with records statute could not be used to convict the defendant for providing false information on his sexual offender registration form.

The court noted that the failure to provide truthful information can be prosecuted under a separate statute requiring sex offenders to periodically “verify” address and other information.

 

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Conviction of Female Teacher Who Had Sex With Male Students Affirmed Despite Lack of Specific Dates

An Ohio Appeals Court has upheld the conviction of a teacher for having sexual relations with students.  The court held that the state presented sufficient evidence and di not need to provide exact dates of the sexual encounters.

The case is State v. Covic, 2012-Ohio-3633.

The defendant was a teacher of a special program for at-risk kids.  She obtained permission from the principal to give out her personal cell phone number to her students so that she could stay in touch by text messaging regarding homework assignments and truancy issues.

The defendant had invited groups of students to her house to drink alcohol and play poker late at night when her husband was not home.  Two male students testified that, when they went to her house, she gave them alcohol and engaged in sexual conduct with them.  Later, the defendant received a series of text messages a male student who had graduated from the school demanding $4000 or he would tell police that she had raped him.

The defendant later admitted to other teachers that she had done “something very inappropriate.”

One of the young males testified that he went to the defendant’s house at least 30 times.  He said that he always took a friend with him to play poker and drink alcohol and that they would often stay at the house all night.  He also said that the defendant had sex with him.  Three other former students testified that they went. to the defendant’s house to drink alcohol and play poker.  The defendant testified that she never had sex with any of her students and that she never gave any students alcohol.

The jury convicted her of contributing to the delinquency of a minor and sexual battery.  The trial court sentenced her to serve three years in prison for sexual battery and a concurrent six months for contributing to the delinquency of a minor.

On appeals, the defendant argued that the testimony of the students was not credible because both are juvenile delinquents and  admitted liars.  In particular, both boys “admitted to having lied to the school principal and/or other authorities, even police officers, when the allegations were first brought to light through teachers at the school.”   The court rejected this argument noting that the child had testified “that he denied all the allegations initially because he did not want to get her in trouble, but he felt he had to tell the truth later because it was the right thing to do.”  The court also noted that the other teachers’ testimony about her alleged confessions was corroorbated by the different statements and the fact that the defendant husband worked 24-hour shifts as a fireman, leaving him off for 48 hours in between.

The defendant also argued that she was “prejudiced by the lack of specific dates in the bill of particulars and discovery responses provided by the State.”  The court noted that specific dates are not necessary in prosecutions of sexual abuse of juveniles.  The court noted that in cases of child sexual abuse, young victims often are unable to remember exact dates when the offenses occurred. quoting  State v. Carey, 2d Dist. No. 2002-CA-70, 2003-Ohio-2684, ¶ 8.

The court concluded that the “record does not indicate that the State had details about the dates of the alleged conduct that it refused to provide to the defense via a bill of particulars or discovery prior to trial.”  In part, this was because the defendant generally denied the allegations and did not pursue an alibi defense.  A concurring judge emphasized that the defendant “has not shown that her ability to prepare and present a defense was materially affected by the lack of information.”  This judge was concerned that “the main opinion could be read to suggest that the defendant’s] failure to file a notice of alibi or failure to present evidence of the same is, in and of itself, fatal to her argument that the lack of information was material to her ability to prepare and present a defense, I write separately to make clear that I do not believe that to be the case.”

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Ohio Supreme Court to Review Penalties for Sex Offender Notification Statute

Appeal to Watch on the Sexual Offender Registration Issue:  State v. Howard.  The docket and all briefs are available on the Supreme Court web page.  The case was reported below at 195 Ohio App.3d 802, 2011-Ohio-5693.

This issue in this case involves the sex offender notification statute.  The defendant was convicted for failure to notify, in violation of R.C. 2950.05(A) and (F)(1).   In September 2000, the defendant had been convicted of rape and designated a habitual sex offender.   Pursuant to the Adam Wash act, the defendant was reclassified a Tier III sex offender.

In 2010, the defendant was charged with failure to notify, a felony of the first degree, for failing to provide notice of his change of residence address to the sheriff.

As a result of later Ohio Supreme Court decisions, the defendant’s reclassification as a Tier III sex offender was rescinded and his original classification as a habitual sex offender and the community-notification and registration orders attending that classification were reinstated.

The issue deals with the penalty.  When the original classification and registration requirements are applied, the conviction for failure to notify is a felony of the fifth degree.  The Adam Walsh Act changed the penalty to a Felony of the First Degree.  The court of appeals held that the trial court erred when it convicted the defendant of a first-degree felony instead of finding him guilty of a fifth degree felony.

In its brief, the state argues that “A violation of the registration requirements is a new, separate offense. And the newincreased penalties in R.C. 2950.99 are not being retroactively applied when the offender’s criminal conduct occurs after the effective date of the statute.”

In response, the defendant argues “Under the former R.C. 2950.99 that was in effect when [the defendant’s] duty to notify of a change in residence address first arose in September, 2000, a failure to comply with this dutywould result in a fifth degree felony. R.C. 2950.99, as amended in 2007, increased the penalty for a failure to notify from a fifth degree felony to a first degree felony, creating a new liability.”

 

If you have questions about this issue, or if you need an Ohio Criminal Defense Lawyer for your Ohio criminal appeal or other post-conviction matter, please visit the  Appeals Section of J. Adam Engel, LLC.

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Court Rules Defendant not subject to notification requirements under Megan’s Law

An Ohio Appeals Court has upheld the dismissal of charges based on failure to comply with sexual registration requirements where the defendant had completed his sentence before the new requirements went into effect.

The case is State v. York, 2012-Ohio-3159.

In 1995, the Defendant was sentenced to two years in prison for sexual battery.  He was never classified under Ohio’s first comprehensive sex-offender regulation, enacted as Megan’s Law in 1996.  In 2007, Ohio passed the Adam Walsh Act, which applied to sex offenders regardless of when their offenses occurred.  Based on York’s 1995 sexual battery conviction, the Adam Walsh Act automatically imposed on him a Tier III sex-offender classification.

In 2008, the Defendant York was charged with failure to provide notice of change of address, a felony of the third degree.  In 2009, he pleaded guilty to the charge.  He subsequently filed a motion to withdraw his previously entered guilty plea and dismiss the indictment against him.  The trial granted the motion to dismiss.  The state appealed.

This case arose because, in 2011, the Ohio Supreme Court held that the Adam Walsh Act was unconstitutional as applied to defendants who had committed sex offenses prior to its enactment.  State v. Williams, 129 Ohio St.3d 344, 2011-Ohio-3374 (2011).  The state srgued that the Defendant had a duty to register under Megan’s Law regardless.

The record in this case showed that the Defendant had completed his sentence for sexual battery prior to the enactment of Megan’s Law; therefore, he was correctly never classified as a sexual offender pursuant to Megan’s Law. Under a separate Ohio Supreme Court decision, State v. Champion, 106 Ohio St.3d 120, 2005-Ohio-4098 (2005), if the Defendant had completed his prison sentence for sexual battery prior to the enactment of Megan’s Law, the former law’s registration requirements did not apply to him.

The court, thus concluded that the Defendant was not subject to notification requirements under Megan’s Law as he served his sentence prior to that law’s enactment.  Therefore, any conviction based on an unlawful classification under the Adam Walsh Act cannot be maintained even if his conduct would have constituted a violation of Megan’s Law.

 

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