State v. Blanton
| Decision Date | 06 October 2009 |
| Docket Number | No. 08AP-844.,08AP-844. |
| Citation | 184 Ohio App.3d 611,2009 Ohio 5334,921 N.E.2d 1103 |
| Parties | The STATE of Ohio, Appellee, v. BLANTON, Appellant. |
| Court | Ohio Court of Appeals |
Ron O'Brien, Franklin County Prosecuting Attorney, and Steven L. Taylor, Assistant Prosecuting Attorney, for appellee.
Yeura R. Venters, Franklin County Public Defender, and Paul Skendelas, Assistant Public Defender, for appellant.
{¶ 1} Defendant-appellant, Robert Blanton, appeals the conviction and judgment for the offense of failing to provide notice of change of address, in violation of former R.C. 2950.05.1 For the reasons that follow, we affirm in part, reverse in part, and remand for retrial.
{¶ 2} In August 2006, appellant was convicted of the offense of unlawful sexual conduct with a minor and received a sentence of three years on community control. The judgment entry classified appellant as a sexually oriented offender.
{¶ 3} In March 2007, appellant was convicted of the offense of gross sexual imposition and received a one-year prison sentence. The judgment entry classified appellant as a habitual sex offender.
{¶ 4} On November 8, 2007, a grand jury indicted appellant on one count of failure to provide notice of change of address, in violation of R.C. 2950.05. The indictment alleged that appellant failed to provide notice to the Franklin County Sheriff's Department 20 days before changing his address on or about October 4 to October 6, 2007. The indictment listed only appellant's gross sexual imposition as the basis for the duty to register. On the morning of trial, appellee asked to amend the indictment to include appellant's conviction for unlawful sexual conduct with a minor as another or alternate basis. The trial court granted the amendment over appellant's objection.
{¶ 5} During trial, appellant stipulated that he was required to provide notice of a change of his address based upon a prior conviction. It is the alleged failure to comply with this admitted duty that comprises the factual allegations in this matter.
{¶ 6} On July 29, 2008, the jury found appellant guilty of the charge, as indicted. On August 26, 2008, appellant appeared for the sentencing hearing on the failure-to-provide-notice conviction, in addition to motions to revoke probation. With regard to the motions to revoke probation, appellant's prior counsel stipulated to the violations of probation as a result of the new conviction. With regard to the failing-to-provide-notice conviction, the court imposed a sentence of 17 months' incarceration, to run consecutively with the sentences in case Nos. 05CR-01-435 and 05CR-06-3665.2 In total, appellant's aggregate sentence was for a term of six years and ten months. Additionally, the court waived fines but imposed court costs.
{¶ 7} Appellant appeals from the conviction and judgment and raises the following six assignments of error:
[I.] The trial court improperly exposed the jury to inadmissible out-of-court declarations on a critical element of the prosecution in violation of the Ohio Rules of Evidence.
[II.] The trial court erred in admitting statements given by out-of-court declarants to law enforcement officials in violation of the Confrontation Clauses of the Sixth Amendment to the United States Constitution and Section 10, Article I of the Ohio Constitution.
[III.] The state improperly misled Appellant into believing that he was subject to community notification, thereby, resulting in the loss of housing opportunities. The State's action constituted a due process violation under the state and federal Constitutions, warranting discharge.
[IV.] There was insufficient competent, credible evidence to support the jury's verdict, thereby denying Appellant due process under the state and federal Constitutions.
[V.] The trial court erred in denying the [defendant's] motion to dismiss the indictment on the grounds that Senate Bill 10 repealed the registration and reporting requirements contained in R.C. 2950.05.
[VI.] The trial court erred in failing to instruct the jury that the mental element for a violation of R.C. 2950.05 is recklessness and in denying Appellant's request for an instruction on recklessness, thereby denying Appellant Due Process under the state and federal Constitutions.
{¶ 8} For ease and clarity, we will address the assignments of error out of order. First, we consider appellant's fifth assignment of error, which presents the position that the Ohio General Assembly created a six-month hiatus in the registration requirements for sex offenders from July 1, 2007, through January 1, 2008. Specifically, appellant notes the different effective dates for the bill's sections and argues that former R.C. 2950.05 was repealed six months before current R.C. 2950.05 became effective. Further, appellant's alleged conduct occurred during this six-month time frame. Therefore, appellant argues that his alleged conduct occurred at a time when such conduct was not prohibited by statute. Consequently, appellant argues that he could not be convicted of a crime based upon his alleged conduct during this six-month time frame.
{¶ 9} We must first note that appellant stipulated to the element of the offense that he was required to provide notice of change of address as a result of his prior convictions. Although appellant's counsel explained that she felt obligated to enter the stipulation based upon the amendment to the indictment, we find that she had no such obligation. The duty to comply with the registration requirements may arise from one prior conviction or two. Whether appellant had one or two prior convictions is immaterial if he indeed had the duty to provide notice, as he stipulated. Despite this stipulation, appellant now argues that he was not required to provide notice under the law as it existed in October 2007.
{¶ 10} It is well settled that a stipulation binds its parties to "all matters of fact and law concerned in the stipulation." State v. Barstow, 4th Dist. No. 02CA27, 2003-Ohio-7336, 2003 WL 23529694, ¶ 38, citing State v. Martin (Apr. 19, 2002), 6th Dist. No. L-01-1214, 2002 WL 597332; see also State v. Jenkins, 11th Dist. No. 2006-L-266, 2007-Ohio-4770, 2007 WL 2696801, ¶ 35. Therefore, because appellant stipulated that he was required to provide notice, we find that appellant has waived this assignment of error. Appellant may not stipulate at trial that he was required to provide notice and thereafter argue on appeal that he was not required to provide notice.
{¶ 11} However, even if we did not find that appellant waived this assignment of error, courts have uniformly rejected the substance of appellant's hiatus argument. See State v. Goodwin (Dec. 6, 1984), 10th Dist. No. 83AP-599, 1984 WL 6021, *2 (); see also Cox v. Ohio Dept. of Transp. (1981), 67 Ohio St.2d 501, 508, 21 O.O.3d 313, 424 N.E.2d 597 (). The trial court's disposition of appellant's motion to dismiss followed this well-established line of reasoning. As a result, we overrule appellant's fifth assignment of error because appellant was required to notify the sheriff of a change of address in accordance with R.C. 2950.05.
{¶ 12} We will next consider appellant's sixth assignment of error, which regards the culpable mental state necessary to establish a violation of R.C. 2950.05. Appellant argues that no mental state is specified in R.C. 2950.05, such that proof of recklessness is required. Conversely, appellee argues that a violation of R.C. 2950.05 is a strict-liability offense, so proof of a mental state is not required.
{¶ 13} R.C. 2901.21(B) governs the issue and provides:
When the section defining an offense does not specify any degree of culpability, and plainly indicates a purpose to impose strict criminal liability for the conduct described in the section, then culpability is not required for a person to be guilty of the offense. When the section neither specifies culpability nor plainly indicates a purpose to impose strict liability, recklessness is sufficient culpability to commit the offense.
{¶ 14} It is well settled that courts must first consider the words of a statute to determine the legislative intent. State v. Maxwell, 95 Ohio St.3d 254, 2002-Ohio-2121, 767 N.E.2d 242, ¶ 10, citing Provident Bank v. Wood (1973), 36 Ohio St.2d 101, 105, 65 O.O.2d 296, 304 N.E.2d 378. Therefore, we must consider the language of R.C. 2950.05, which provides:
(A) If an offender * * * is required to register pursuant to section 2950.04 or 2950.041 [2950.04.1] of the Revised Code, the offender * * * at least twenty days prior to changing the offender's * * * residence address, * * * shall provide written notice of the residence, * * * address change, as applicable, to the sheriff with whom the offender * * * most recently registered.
* * *
(E)(1) No person who is required to notify a sheriff of a change of address pursuant to division (A) of this section shall fail to notify the appropriate sheriff in accordance with that division.
{¶ 15} R.C. 2950.05 clearly does not specify a mental state. Therefore, we must determine whether R.C. 2950.05 plainly indicates a legislative intent to impose strict liability. If it does not, then the catchall mental state of recklessness must be proven to establish a violation of R.C. 2950.05. See R.C. 2901.21(B). The Eighth and Sixth Appellate Districts have decided this precise issue in regard to R.C. 2950.05. See State v. Beasley (Sept. 27, 2001), 8th Dist. No. 77761, 2001 WL 1152871; see also State v. Robinson, 6th Dist. No. E-07-020, 2009-Ohio-2921, 2009 WL 1719359.
{¶ 16} In Beasley, 2001 WL 1152871, the defendant was found guilty of one count of...
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