State v. Watson , 2011 Ohio 6153 ( 2011 )

[Cite as State v. Watson, 2011-Ohio-6153.]
STATE OF OHIO, BELMONT COUNTY
IN THE COURT OF APPEALS
SEVENTH DISTRICT
STATE OF OHIO, )
) CASE NO. 10 BE 18
PLAINTIFF-APPELLEE, )
)
- VS - ) OPINION
)
BENJAMIN WATSON, )
)
DEFENDANT-APPELLANT. )
CHARACTER OF PROCEEDINGS: Criminal Appeal from Common Pleas
Court, Case No. 09CR219.
JUDGMENT: Affirmed.
APPEARANCES:
For Plaintiff-Appellee: Attorney Chris Berhalter
Prosecuting Attorney
Attorney Helen Yonak
Assistant Prosecuting Attorney
147-A West Main Street
St. Clairsville, Ohio 43950
For Defendant-Appellant: Attorney John Vavra
132 West Main Street
St. Clairsville, Ohio 43950
JUDGES:
Hon. Joseph J. Vukovich
Hon. Gene Donofrio
Hon. Mary DeGenaro
Dated: November 28, 2011
VUKOVICH, J.
¶{1} Defendant-appellant Benjamin Watson appeals from his conviction in the
Belmont County Common Pleas Court for a violation of R.C. 2950.05(F)(1), which is
failing to notify a sheriff of a change of address pursuant R.C. 2950.05(A). Watson
asserts two arguments in this appeal. First, he argues that not only is the indictment
defective, but it also fails to charge him with an offense. Second, he contends that the
conviction is against the manifest weight of the evidence.
¶{2} For the reasons expressed more fully infra, the indictment adequately
charged Watson with a violation of R.C. 2950.05(A). Furthermore, after reviewing the
testimony and evidence submitted at trial, it is clear that the trial court did not lose its
way when it found Watson guilty of the indicted offense. Therefore, the judgment of
the trial court is hereby affirmed.
STATEMENT OF CASE
¶{3} It is undisputed that Watson was previously convicted of a sexually
oriented offense and is a Tier 3 offender that is required to register every 90 days for
the rest of his life. In November 2009, he was indicted for allegedly violating the
registration requirements in R.C. 2950.05(F)(1) from November 2008 through January
2009. Watson pled not guilty, waived his right to a jury trial and the cause proceeded
to a bench trial. During the direct testimony of the first witness, Watson objected and
moved to dismiss the case based on a defective indictment. (Tr. 6). At the close of
trial, the court granted Watson ten days to file a motion to dismiss. Following the
briefing, the trial court denied the motion to dismiss, found Watson guilty and set the
matter for sentencing. Watson received a three year sentence for the conviction. He
filed a motion to stay execution during the pendency of the appeal, which was granted.
FIRST ASSIGNMENT OF ERROR
¶{4} “THE TRIAL COURT ERRED IN FAILING TO DISMISS THIS ACTION
WHERE VITAL AND MATERIAL ELEMENTS IDENTIFYING AND CHARACTERIZING
THE CRIME CHARGED WERE OMITTED FROM THE INDICTMENT SUCH THAT
THE INDICTMENT WAS INSUFFICIENT TO CHARGE AN OFFENSE.”
¶{5} Crim.R. 12(C)(2) states:
¶{6} “Prior to trial, any party may raise by motion any defense, objection,
evidentiary issue, or request that is capable of determination without the trial of the
general issue. The following must be raised before trial:
¶{7} “* * *
¶{8} “(2) Defenses and objections based on defects in the indictment,
information, or complaint (other than failure to show jurisdiction in the court or to
charge an offense, which objections shall be noticed by the court at any time during
the pendency of the proceeding).”
¶{9} The Ohio Supreme Court has stated that the failure to timely object to a
defect in an indictment constitutes a waiver of the error. State v. Horner, 126 Ohio
St.3d 466, 2010-Ohio-3830, ¶46, 55; Crim.R. 12(C)(2). Therefore, “any claim of error
in the indictment” is limited to a plain error review. Id.¶{10} As aforementioned, Watson did not object to the indictment prior to trial.
Thus, as to any defect in the indictment, he waived all but plain error. However,
Watson’s argument not only encompasses the position that the indictment was
defective, but that it also failed to charge him with an offense. That argument can be
raised at any time and is not reviewed under a plain error analysis.
¶{11} Our review of the indictment will begin with Watson’s position that the
indictment failed to charge him with an offense. The indictment read as follows:
¶{12} “THE JURORS OF THE GRAND JURY of the State of Ohio, * * * do find
and present that * * * BENJAMIN ALAN WATSON being a person who is required to
register with the Belmont County Sheriff’s Office in Belmont County, Ohio pursuant to
Ohio Revised Code §2950.04, did fail to provide written notice of a residence address
change to the sheriff’s office in Belmont County, Ohio, the office with whom he had
most recently registered, at least three days prior to changing his address, between
the dates of November 2008 and January 2009. . . in violation of the Ohio Revised
Code, Title Twenty-Nine Section 2950.05(F)(1), and against the peace and dignity of
the State of Ohio.”
¶{13} The statute cited in the indictment was R.C. 2950.05(F)(1), which
provides:
¶{14} “No person who is required to notify a sheriff of a change of address
pursuant to division (A) of this section or a change in vehicle information or identifiers
pursuant to division (D) of this section shall fail to notify the appropriate sheriff in
accordance with that division.”
¶{15} The parties agree that the reference to (F)(1) is an assertion that there is
a violation of subsection (A).
¶{16} Watson argues that the language in the indictment “written notice of
residence address change” is an element of R.C. 2950.05(B), not R.C. 2950.05(A).
Thus, he asserts that the indictment is not adequately charging him with a violation of
R.C 2950.05(A) because it is in actuality listing the elements of R.C. 2950.05(B).
¶{17} It has been held that in order to satisfy federal and state constitutional
requirements, a charging instrument must contain the elements of the offense charged
and fairly inform the defendant of the charge against which he must defend and
enables him to present an acquittal or conviction of the charge as a bar to future
prosecutions for the same offense. Horner, supra, ¶11, citing State v. Buehner, 110
Ohio St.3d 403, 2006-Ohio-4707, ¶7; State v. Maisch, 173 Ohio App.3d 724, 2007-
Ohio-6230, ¶34, citing State v. Reinhart, 3d Dist. No. 15-06-07, 2007-Ohio-2284, ¶14.
In order to determine whether there is any validity in Waston’s argument, i.e.
whether the indictment fairly informed Watson of the violation of R.C. 2950.05(A), we
must examine the language of sections (A) and (B) in R.C. 2950.05.
¶{18} Section (A) states:
¶{19} “(A) If an offender * * * is required to register pursuant to division (A)(2),
(3), or (4) of section 2950.04 * * *, the offender * * * shall provide notice of any change
of residence, school, institution of higher education, or place of employment address,
to the sheriff with whom the offender or delinquent child most recently registered the
address under division (A)(2), (3), or (4) of section 2950.04 or 2950.041 of the Revised
Code or under division (B) of this section. * * * [T]he offender * * * shall provide the
written notice at least twenty days prior to changing the address of the residence,
school, or institution of higher education and not later than three days after changing
the address of the place of employment. They shall provide the written notices during
the period they are required to register. If a residence address change is not to a fixed
address, the offender * * * shall include in that notice a detailed description of the place
or places at which the offender * * * intends to stay and, not later than the end of the
first business day immediately following the day on which the person obtains a fixed
residence address, shall provide that sheriff written notice of that fixed residence
address. If a person whose residence address change is not to a fixed address
describes in a notice under this division the place or places at which the person
intends to stay, for purposes of divisions (C) to (I) of this section, sections 2950.06 to
2950.13 of the Revised Code, and sections 311.171 and 2919.24 of the Revised
Code, the place or places so described in the notice shall be considered the person's
residence address and registered residence address until the person provides the
written notice of a fixed residence address as described in this division.”
¶{20} Division (B) states:
¶{21} “If an offender * * * is required to provide notice of a residence, school,
institution of higher education, or place of employment address change under division
(A) of this section, * * * the offender * * * at least twenty days prior to changing the
residence, school, or institution of higher education address and not later than three
days after changing the place of employment address, as applicable, also shall
register the new address in the manner, and using the form, described in divisions (B)
and (C) of section 2950.04 or 2950.041 of the Revised Code, whichever is applicable,
with the sheriff of the county in which the offender's * * * new address is located,
subject to division (C) of this section. If a residence address change is not to a fixed
address, the offender * * * shall include in the registration a detailed description of the
place or places at which the offender * * * intends to stay and, not later than the end of
the first business day immediately following the day on which the person obtains a
fixed residence address, shall register with that sheriff that fixed residence address. If
a person whose residence address change is not to a fixed address describes in a
registration under this division the place or places at which the person intends to stay,
for purposes of divisions (C) to (I) of this section, sections 2950.06 to 2950.13 of the
Revised Code, and sections 311.171 and 2919.24 of the Revised Code, the place or
places so described in the registration shall be considered the person's residence
address and registered residence address, until the person registers a fixed residence
address as described in this division.”
¶{22} While these two sections are very similar, they are separate offenses.
Under division (A) an offender is required to register to provide written notice of any
change of residence to the sheriff “with whom the offender * * * most recently
registered the address” under R.C. 2950.04(A)(2), (3), or (4). R.C. 2950.05(A). Under
this section the offender must register with the county he is currently living in of any
change of residence. Division (B), requires in addition to fulfilling the requirements in
division (A), for the offender to register with the sheriff of the county where his new
address is located twenty days prior to moving. R.C. 2950.05(B). Thus, a reading of
this section appears to apply when the offender is changing his address to a different
county. Therefore, in addition to registering in the county he is moving from, the
offender must register in the county he is moving to. Division (B) also requires the
notice to the sheriff of the new address to be done using a specific form. R.C.
2950.5(B).
¶{23} After reviewing those two divisions and seeing the differences between
the two, we find that the indictment did in fact charge Watson with a violation of R.C.
2950.05(A). We hold as such for three specific reasons. First, despite Watson’s
insistence to the contrary, the phrase in the indictment “written notice of a residence
address change” is not an indication of a violation of division (B) instead of division (A).
That phrase merely means a written notice of change of address of residence. Division
(A) uses the phrases “change of residence,” “changing the address of residence,” and
“residence address change” to all discuss a change of residence address; these
phrases are used interchangeably. Thus, it cannot be concluded that “written notice of
a residence address change” can only mean division (B). Furthermore, as discussed
above, the distinction between divisions (A) and (B) is whether the change of
residence is to a different county; division (B) would only be applicable if the county of
residence changed. This is obvious from a reading of the entire section, not from the
generic phrase “written notice of a residence address change.” Moreover, we note
that although this exact argument has not been addressed before, our sister districts
have stated that R.C. 2950.05(A) requires offenders to submit written notice of a
residence address change. State v. Pryor, 5th Dist. No. 2007-CA-00166, 2008-Ohio-
1249, ¶27-28; State v. Beasley (Sept. 27, 2001), 8th Dist. No. 77761. Thus, for those
reasons it cannot be concluded that the phrase is solely a reference to division (B).
¶{24} Second, the indictment clearly states Watson failed “to provide written
notice of a residence address change to the sheriff’s office in Belmont County, Ohio,
the office with whom he had most recently registered.” 11/04/09 Indictment
(Emphasis added). The emphasized portion clearly tracks the language of division (A)
and can only be a reference to division (A). As aforementioned, division (B) discusses
registering the change of address with the sheriff of the county in which the offender’s
new address is located, while division (A) references notifying the sheriff with whom
the offender most recently registered. Division (B) does not reference registering the
change of address with the sheriff the offender most recently registered.
¶{25} Third, the indictment does not reference failing to use a form to register.
That element is specific to division (B) and is not even mentioned in division (A). If the
indictment had been attempting to charge a violation of division (B) a statement about
the failure to use the appropriate form would likely have been included.
¶{26} Accordingly, for those reasons, we find that the indictment did charge
Watson with a violation of R.C. 2950.05(A).
¶{27} Our analysis now turns to Watson’s second argument that the indictment
was defective because it incorrectly stated that the written notice of change of
residence address had to be provided at least three days prior to the change. Watson
contends that the statute requires twenty days written notice of a change of residence
address.
¶{28} As previously stated, Watson did not object to the indictment prior to trial.
Thus, this argument, which is asserting that the indictment is defective, is reviewed
under a plain error analysis. To reverse a decision based on plain error, a reviewing
court must determine that a plain (or obvious) error occurred that affected the outcome
of the trial. State v. Barnes (2002), 94 Ohio St.3d 21, 27. See Crim.R. 52(B).
¶{29} Clearly, as the above recitation of R.C. 2950.05(A) shows, the statute
requires twenty days written notice of a change of residence address. The
indictment’s reference to three days instead of twenty is incorrect. That said, we do
not find that the misstatement amounts to plain error.
¶{30} The Ohio Supreme Court held that “an indictment that charges a
defendant with child endangering in violation of R.C. 2919.22(A) as a third-degree
felony but does not contain language that the victim suffered serious physical harm
adequately informs the defendant of the charge against which he must defend and is
sufficient.” State v. Pepka, 125 Ohio St.3d 124, 2010-Ohio-1045, ¶2. Thus, even
though physical harm was an element of the offense of child endangering, the
notification that it was a third-degree felony enabled the defendant to know that
physical harm was an element the defendant would have to defend against. Id.¶{31} Considering that the time limit is misstated, but is easily discoverable
from reading R.C. 2950.05(A), the indictment provided adequate notice of the charge
against Watson and was sufficient. Furthermore, as will be discussed below, the
evidence established that Watson did not provide any written notice to the sheriff prior
to changing his address. Thus, Watson cannot show plain error; a conviction would
still have resulted even if the indictment stated twenty days rather than three.
Therefore, considering all the above, this assignment of error lacks merit.
SECOND ASSIGNMENT OF ERROR
¶{32} “THE TRIAL COURT ERRED IN FINDING APPELLANT GUILTY
WHERE THAT FINDING IS NOT SUPPORTED BY THE MANIFEST WEIGHT OF
THE EVIDENCE.”
¶{33} In determining whether a verdict is against the manifest weight of the
evidence, a court of appeals 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 justice that the
conviction must be reversed and a new trial ordered. State v. Thompkins (1997), 78
Ohio St.3d 380, 387. “Weight of the evidence concerns ‘the inclination of the greater
amount of credible evidence, offered in a trial, to support one side of the issue rather
than the other.’” Id. A conviction will only be reversed as against the manifest weight
of the evidence in exceptional circumstances. Id. at 387. This is so because the trier
of fact is in a better position to determine credibility issues, since he personally viewed
the demeanor, voice inflections and gestures of the witnesses. State v. Hill (1996), 75
Ohio St.3d 195, 204; State v. DeHass (1967), 10 Ohio St.2d 230, 231.
¶{34} The testimony established that Watson registered his address with the
sheriff as 4253 Pine Alley, Bellaire, Ohio on November 7, 2008 and January 19, 2009.
(Tr. 28, 68, 112). On February 5, 2009, Watson’s parole officer did a routine home
visit to the residence and was informed by a Mr. Morris that Watson had not lived there
since November 6, 2008. (Tr. 39). A couple of days later, the parole officer and a
detective returned to residence and spoke to a Ms. Morris. She first indicated that
Watson was living there, but later admitted that he was staying with the Warycks on
Belmont Street. (Tr. 40-41). Mr. Waryck testified that Watson began living at his
house in November and moved out sometime in January or February. (Tr. 66-67).
Holly Anderson, who was also living at the Warycks, testified that Watson was living
with the Warycks from November until around February. (Tr. 69-63). There was
testimony that Ms. Morris and Ms. Waryck told investigators that Watson was not living
at the Warycks. However, both women changed their story numerous times and were
considered by the investigators to be unreliable. (Tr. 90, 92). The investigators
concluded that Watson had changed his residence to the Warycks’ residence, but had
not registered that address with the sheriff. (Tr. 90-96, 106, 113-114).
¶{35} Consequently, considering the evidence, there was competent credible
evidence to find that Watson changed his residence address and did not register the
change of address with the sheriff. The trial court, as the trier of fact, was in the best
position to determine witness credibility and determine which evidence to believe. Hill,
supra. This assignment of error lacks merit.
CONCLUSION
¶{36} For the foregoing reasons, the judgment of the trial court is hereby
affirmed.
Donofrio, J., concurs.
DeGenaro, J., concurs.