State v. Greenlee ( 2011 )

[Cite as State v. Greenlee, 2011-Ohio-3692.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 96002
STATE OF OHIO
PLAINTIFF-APPELLANT
vs.
ROBERT GREENLEE
DEFENDANT-APPELLEE
JUDGMENT:
AFFIRMED
Criminal Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CR-537180
BEFORE: Sweeney, P.J., Cooney, J., and S. Gallagher, J.
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RELEASED AND JOURNALIZED: July 28, 2011
ATTORNEYS FOR APPELLANT
William D. Mason, Esq.
Cuyahoga County Prosecutor
By: Matthew Waters, Esq.
Assistant County Prosecutor
8 Floor, Justice Center
ht
1200 Ontario Street
Cleveland, Ohio 44113
ATTORNEY FOR APPELLEE
Jeffrey P. Hastings, Esq.
50 Public Square, Suite 3300
Cleveland, Ohio 44113-2289
JAMES J. SWEENEY, P.J.:
{¶ 1} The state of Ohio appeals the trial court’s order dismissing the
indictment against defendant-appellee, Robert Greenlee (“defendant”)
pursuant to Crim.R. 12(C)(1) and (2). For the reasons that follow, we affirm.
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{¶ 2} Defendant was charged with one count of failure to register in
violation of R.C. 2950.06(F) and failure to provide notice of change of address
in violation of R.C. 2950.05(E)(1), which are felonies of the fourth degree.
{¶ 3} The felony charges were predicated on defendant’s juvenile
delinquency adjudication in Iowa for the crime of assault pursuant to I.C.A.
§708.1(1) and 708.2(4). The state maintains that the Iowa adjudication was
the substantial equivalent of a gross sexual imposition conviction under Ohio
law and thus a sexually oriented offense. Defendant maintains it was not.
{¶ 4} The trial court determined that defendant’s adjudication for
assault in Iowa was not substantially equivalent to a “sexually oriented
offense” as defined under Ohio law. The state’s appeal presents two
assignments of error that both challenge the court’s decision to dismiss the
indictment and are addressed together.
{¶ 5} “I: The trial court erred in granting defendant-appellee’s motion
to dismiss because summary judgment is not permitted in criminal cases.
{¶ 6} “II: The trial court erred in granting defendant-appellee’s motion
to dismiss because the underlying crime is a sexually oriented offense subject
to reporting requirements.”
{¶ 7} “A pretrial motion must not involve a determination of the
sufficiency of the evidence to support the indictment. If the indictment is
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valid on its face, a motion to dismiss should not be granted.” State v. Preztak,
181 Ohio App. 3d 106, 2009-Ohio-62, 907 N.E.2d 1254, ¶ 12, citing State v.
Eppinger, 162 Ohio App. 3d 795, 2005-Ohio-4155, 835 N.E.2d 746. This court
recently noted “that a court may consider material outside the face of the
indictment if the ‘motion did not embrace what would be the general issue at
trial.’” State v. Ortega-Martinez, Cuyahoga App. No. 95656, 2011-Ohio-2540,
¶15, quoting, State v. Brady, 119 Ohio St. 3d 375, 2008-Ohio-4493, 894 N.E.2d
671, ¶18; Crim.R. 12(C). “The court may consider briefs, affidavits, testimony,
and other exhibits in deciding the motion. However, a court may not
determine a pretrial motion to dismiss if it requires the trial court to also
determine the general issue for trial.”
{¶ 8} In Ortega-Martinez, this Court determined that the trial court
properly dismissed an indictment for failure to register that was predicated
upon an unconstitutional reclassification of him under the Adam Walsh Act
and, therefore, “did not require a determination of the factual issue for trial.”
Id. at ¶16. Likewise, the trial court in this case was not determining the
factual issue for trial, that is whether or not defendant failed to verify his
address or failed to provide notice of his change of address. Similar to
Ortega-Martinez, the trial court was determining whether the indictment was
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valid on its face, i.e., whether the underlying offense actually constituted a
sexually oriented offense as required to state an indictable offense.
{¶ 9} This court has held that an unlawful reclassification under Ohio’s
AWA cannot serve as the predicate for the crime of failure to verify. State v. Smith,
Cuyahoga App. No. 92550, 2010-Ohio-2880, ¶29; State v. Page, Cuyahoga App. No.
94369, 2011-Ohio-83.
{¶ 10} Even if defendant’s adjudication in Iowa is substantially
equivalent to some sexually oriented offense as defined by Ohio law, the
dismissal of the indictment was proper because it was predicated on an
unlawful reclassification under the AWA. Defendant contends the
dismissal of the indictment was also proper pursuant to State v. Smith,
Cuyahoga App. No. 92550, 2010-Ohio-2880. To the extent that defendant was
reclassified under the provisions of Ohio’s Adam Walsh Act as prohibited by
State v. Bodyke, 126 Ohio St. 3d 266, 2010-Ohio-2424, 933 N.E.2d 753, the
reclassification cannot serve as a predicate for the indictment. Id. at ¶29.
This court has held that it is improper to reclassify a person under Ohio’s
Adam Walsh Act notwithstanding that the sexually oriented conviction
occurred out of state. See Majewski v. State, Cuyahoga App. Nos. 92372 and
92400, 2010-Ohio-3178, appeal not allowed, 127 Ohio St.3d 1462,
2010-Ohio-6008, 938 N.E.2d 364 (Table).
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{¶ 11} The assignments of error are overruled.
a. Judgment affirmed.
It is ordered that appellee recover of appellant costs herein taxed.
The Court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this Court directing the
Common Pleas Court to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to
Rule 27 of the Rules of Appellate Procedure.
JAMES J. SWEENEY, PRESIDING JUDGE
COLLEEN CONWAY COONEY, J., and
SEAN C. GALLAGHER, J., CONCUR