State v. Scott , 2020 Ohio 6878 ( 2020 )

[Cite as State v. Scott, 2020-Ohio-6878.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
State of Ohio, :
Plaintiff-Appellee, :
No. 19AP-714
v. : (C.P.C. No. 18CR-5973)
Roger L. Scott, : (REGULAR CALENDAR)
Defendant-Appellant. :
D E C I S I O N
Rendered on December 24, 2020
On brief: Ron O'Brien, Prosecuting Attorney, and Daniel J.
Stanley, for appellee. Argued: Daniel J. Stanley.
On brief: Todd W. Barstow, for appellant. Argued: Todd W.
Barstow.
APPEAL from the Franklin County Court of Common Pleas
BEATTY BLUNT, J.
{¶ 1} Defendant-appellant, Roger L. Scott, appeals the judgment of the Franklin
County Court of Common Pleas finding him guilty of Failure to Provide Notice of Change
of Address and Failure to Register, both felonies of the third degree.
{¶ 2} The court held a bench trial after Scott formally waived his right to a jury trial,
and stipulated both that he was convicted of a felony sex offense in 1993 and that he was
found to be a sexual predator under Ohio's former law in 2000. Evidence at his trial was
presented by two witnesses, both of whom were Franklin County Sheriff's Deputies in the
sex offender registration unit. Prior to trial, Scott's attorney summarized the factual
questions for the court to decide as "whether or not when Mr. Scott registered in September
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or [on October 4, 2018] whether or not he moved at some point. So it's the defense's
position that the State has insufficient evidence to prove that he changed or moved his
address * * *." (Sept. 9, 2019 Tr. Vol I. at 9.)
{¶ 3} Scott was homeless during that period, and registered his address with the
sex offender registration unit on October 4, 2018 as "homeless A/O 61 East Mound St,
Columbus, OH 43215 (Home)." Id. at 22; State's Ex. 5. That location is St. John's Church in
downtown Columbus, and both deputies testified that Scott and several other registered
offenders have used the area and nearby parking lots around St. John's as their registration
address. (Tr. at 30 and 35-37.) The deputy whom Scott registered with testified that Scott
had identified his usual location on a copy of a Google Maps aerial image of the general area
around the church when he registered, and that he signed a copy of that map image. Id. at
24; State's Ex. 7.
{¶ 4} The other deputy who testified conducts address verification checks for
homeless registrants, and stated that he "drive[s] to the specific spot, gets out of the car,
[and] walk[s] around." Id. at 36. He testified that, based on his records, he attempted to
verify Scott's address in the area of 61 East Mound St. 52 times between September 18 and
November 29, 2018, but that he "never verified him at the address." Id. at 44. A significant
number of the verification checks were prior to 6 a.m., a few of them were after 11 p.m., one
was at 12:30 a.m., and one was at 4:20 a.m. See State's Ex. 6. Neither deputy had asked any
other people about Scott's whereabouts or residence, neither testified that his employer was
called, and neither testified that they asked anyone volunteering or working at St. John's
whether Scott had been seen in the area. No evidence was presented of Scott residing at
another location.
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{¶ 5} At the conclusion of the state's case, the trial court overruled Scott's Crim.R.
29 motion for judgment of acquittal based on insufficient evidence. Scott did not put on any
evidence or witnesses, and the court subsequently found Scott guilty of both Failure to
Provide Notice of Change of Address and Failure to Register (Sept. 18, 2019 Tr. Vol. II at
77-78.) The court sentenced Scott to a period of 2 years of risk-reduction community
control, and warned him that he would receive concurrent sentences of 36 months on each
charge if he violated the terms of his community control sanctions. Scott now asserts a
single assignment of error with the trial court's judgment:
The trial court erred and deprived appellant of due process of
law as guaranteed by the Fourteenth Amendment to the United
States Constitution and Article One Section Ten of the Ohio
Constitution by finding him guilty of failure to provide notice
of change of address and failure to register as those verdicts
were not supported by sufficient evidence and were also against
the manifest weight of the evidence.
{¶ 6} "Pursuant to Crim. R. 29(A), a court shall not order an entry of judgment of
acquittal if the evidence is such that reasonable minds can reach different conclusions as to
whether each material element of a crime has been proved beyond a reasonable doubt."
State v. Bridgeman, 55 Ohio St.2d 261 (1978), syllabus. The Bridgeman Crim.R. 29(A)
standard is essentially identical to the standard for "sufficiency of the evidence" announced
in State v. Jenks, 61 Ohio St.3d 259 (1991), paragraph two of the syllabus and "[t]he relevant
inquiry is 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." Id., following Jackson v. Virginia, 443 U.S. 307 (1979). A conviction
based upon legally insufficient evidence is a denial of due process, and if Scott's claim that
he was convicted upon insufficient evidence succeeds, the state is barred from retrying him.
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(Internal citations omitted). See, e.g., State v. Sexton, 10th Dist. No. 01AP-398, 2002-Ohio-
3617, ¶ 30.
{¶ 7} R.C. Chapter 2950 contains the registration and address change notification
requirements at issue in this case. As noted above, Scott stipulated to his status as a
registered sexual offender, and he was therefore required to register and keep his address
current with the county sheriff pursuant to the provisions of that Chapter. As a result, the
parties narrowed the issues both at trial and on appeal to two straightforward factual
questions: (1) whether Scott failed to register his actual address with the county sheriff as
required by R.C. 2950.04(C)(4) when he completed his registration form on October 4,
2018, and (2) whether Scott failed to provide 20 days advance written notice of his intent
to change address pursuant to R.C. 2950.05(A). But because the two deputies testified that
on October 4, 2018 that Scott provided written verification to the sheriff's office that he
lived in the area around 61 East Mound St. both before and after that date, and because
testimony was presented to show that deputies made 13 attempts to locate Scott at and
around that address prior to October 4 and 39 attempts to locate him there on or after that
date, the trial court correctly denied Scott's Crim.R. 29 motion, and his claim of insufficient
evidence fails as to both charges. Moreover, because Scott's contention that he was
convicted in violation of his right to due process under the state and federal constitutions
directly derives from his claim that he was convicted on insufficient evidence, see, e.g.,
Sexton, that argument also lacks merit.
{¶ 8} Scott also argues that his convictions were against the manifest weight of the
evidence. Determinations of credibility and weight of the testimony are primarily for the
trier of fact. State v. DeHass, 10 Ohio St.2d 230 (1967), paragraph one of the syllabus. The
jury, or the court in a bench trial, may take note of inconsistencies at trial and resolve them
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No. 19AP-714
accordingly, "believ[ing] all, part, or none of a witness's testimony." State v. Raver, 10th
Dist. No. 02AP-604, 2003-Ohio-958, ¶ 21, citing State v. Antill, 176 Ohio St. 61, 67 (1964).
Therefore, "[w]hen a court of appeals reverses a judgment of a trial court on the basis that
the verdict is against the weight of the evidence, the appellate court sits as a 'thirteenth
juror' and disagrees with the factfinder's resolution of the conflicting testimony." State v.
Thompkins, 78 Ohio St.3d 380, 387 (1997), superseded by constitutional amendment on
other grounds, and quoting Tibbs v. Florida, 457 U.S. 31, 42 (1982). An appellate court
considering a manifest weight challenge "may not merely substitute its view for that of the
trier of fact, but must review the entire record, weigh the evidence and all reasonable
inferences, consider the credibility of witnesses, and determine whether, in resolving
conflicts in the evidence, the trier of fact 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. Harris, 10th Dist. No. 13AP-770, 2014-Ohio-2501, ¶ 22, citing Thompkins at 387.
Appellate courts should reverse a conviction as being against the manifest weight of the
evidence only in the most " 'exceptional case in which the evidence weighs heavily against
the conviction.' " Thompkins at 387, quoting State v. Martin, 20 Ohio App.3d 172, 175 (1st
Dist.1983).
{¶ 9} We have thoroughly reviewed the record, and it simply cannot be said that
this is the exceptional case justifying a reversal based upon the weight of the evidence. As
noted above, deputies attempted to locate Scott at and around his October 4, 2018
registration address 52 times between September 18 and November 29, 2018, but were
unable to locate him at any point. Scott did not offer any evidence to contradict their
testimony; instead, the arguments against the verdict in this case largely boil down to
whether the deputies did enough to demonstrate that Scott was not actually residing at the
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place at which he was registered. As a result, we conclude that Scott's manifest weight claim
must fail.
{¶ 10} For all these reasons, we overrule Scott's single assignment of error, and the
judgment of the Franklin County Court of Common Pleas is affirmed.
Judgment affirmed.
SADLER, P.J., and LUPER SCHUSTER, J., concur.