State v. Scott , 2011 Ohio 6255 ( 2011 )

[Cite as State v. Scott, 2011-Ohio-6255.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 91890
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
JOSEPH SCOTT
DEFENDANT-APPELLANT
JUDGMENT:
AFFIRMED
Criminal Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CR-505742
BEFORE: S. Gallagher, J., Kilbane, A.J., and Blackmon, J.
RELEASED AND JOURNALIZED: December 8, 2011
ATTORNEYS FOR APPELLANT
Robert Tobik
Chief Public Defender
BY: John T. Martin
Assistant Public Defender
310 Lakeside Avenue, Suite 400
Cleveland, Ohio 44113
Also listed:
Joseph Scott, pro se
Inmate No. 551-565
Mansfield Correctional Institution
P.O. Box 788
Mansfield, OH 44901
ATTORNEYS FOR APPELLEE
William D. Mason
Cuyahoga County Prosecutor
BY: Pinkey S. Carr
Diane Smilanick
Assistant Prosecuting Attorneys
The Justice Center, 8th Floor
1200 Ontario Street
Cleveland, Ohio 44113
SEAN C. GALLAGHER, J.:
{¶ 1} This appeal is before this court on remand from the Ohio
Supreme Court for application of State v. Williams, 129 Ohio St.3d 344,
2011-Ohio-3374, 952 N.E.2d 1108, and State v. Dunlap, 129 Ohio St.3d 461,
2011-Ohio-4111, 953 N.E.2d 816. State v. Scott, __ Ohio St.3d __,
2011-Ohio-5343, __ N.E.2d __.
{¶ 2} In State v. Scott, Cuyahoga App. No. 91890, 2010-Ohio-3057, this
court affirmed Scott’s convictions of gross sexual imposition and attempted
rape. The Ohio Supreme Court accepted review on propositions of law VII
(“Gross sexual imposition against a child under 13 is not a strict liability
offense. The act of sexual contact must be recklessly performed.”) and IX
(“The Adam Walsh Act does not apply to persons whose offenses were
committed prior to the AWA’s effective date”). The Ohio Supreme Court has
remanded the case to this court for application of the Williams and Dunlap
decisions.
{¶ 3} In Williams, the court held as follows: “S.B. 10, as applied to
defendants who committed sex offenses prior to its enactment, violates Section
28, Article II of the Ohio Constitution, which prohibits the General Assembly
from passing retroactive laws.” (Emphasis added.) Id. at ¶ 20. S.B. 10,
a.k.a. the Adam Walsh Act (“the AWA”), was enacted on June 27, 2007, and
made effective on January 1, 2008.
{¶ 4} Here, the subject offenses took place during the date range of July
1, 2007 through August 31, 2007. Scott argues that he cannot be classified
as a sex offender because his offenses occurred between the repeal of Ohio’s
Megan’s Law and the effective date of the AWA, thereby evading Ohio’s
sexual registration laws. We disagree.
{¶ 5} Consistent with the holding in Williams, we find Scott’s
classification under the AWA was constitutional because the offenses took
place after the “enactment” of S.B. 10 in June 2007. Therefore, we uphold
his sex-offender classification under the AWA.
{¶ 6} In Dunlap, the court addressed the mens rea element of gross
sexual imposition involving victims under 13 years of age. The court held
that “the applicable mens rea of sexual contact, as defined in R.C. 2907.01(B),
is purpose.” Id. at ¶ 26. The court recognized its holding in State v. Horner,
126 Ohio St.3d 466, 2010-Ohio-3830, 935 N.E.2d 26, ¶ 45, that “‘when the
indictment fails to charge the mens rea of the crime, but tracks the language
of the criminal statute describing the offense, the indictment provides the
defendant with adequate notice of the charges against him and is, therefore,
not defective.’” Id. at ¶ 17. The court found that “Dunlap’s indictment
tracked the language of R.C. 2907.05(A)(4), so, pursuant to Horner, even if
the indictment failed to charge a mens rea, it was not defective.” Id.
Because the indictment was not defective and the jury was properly
instructed on the element of sexual contact as set forth in R.C. 2907.01(B),
the court found the trial court did not err. Id. at ¶ 27. A review of the
indictment on Count 16 for gross sexual imposition reflects that it tracked the
language of R.C. 2907.05(A)(4). Further, the jury was instructed on the
element of sexual contact and provided the definition set forth in R.C.
2907.01(B). Consistent with Dunlap, we find the indictment herein was not
defective, the jury was properly instructed, and the trial court did not err.
{¶ 7} Consistent with our decision herein, we modify our prior opinion.
The judgment of the trial court remains affirmed.
Judgment affirmed.
It is ordered that appellee recover from 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. The defendant’s conviction having been
affirmed, any bail pending appeal is terminated. Case remanded to the trial court for
execution of sentence.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the
Rules of Appellate Procedure.
SEAN C. GALLAGHER, JUDGE
MARY EILEEN KILBANE, A.J., and
PATRICIA ANN BLACKMON, J., CONCUR