State v. Overton , 2024 Ohio 1425 ( 2024 )

[Cite as State v. Overton, 2024-Ohio-1425.]
COURT OF APPEALS
RICHLAND COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO JUDGES:
Hon. Patricia A. Delaney, P.J.
Plaintiff-Appellee Hon. William B. Hoffman, J.
Hon. John W. Wise, J.
-vs-
Case No. 2023 CA 0031
DANIEL W. OVERTON
Defendant-Appellant OPINION
CHARACTER OF PROCEEDING: Criminal Appeal from the Court of Common
Pleas, Case No. 2021 CR 965
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: April 12, 2024
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
JODIE SCHUMACHER RANDALL E. FRY
PROSECUTING ATTORNEY 10 West Newlon Street
MARTIN I. NEWMAN Mansfield, Ohio 44902
ASSISTANT PROSECUTOR
38 South Park Street
Mansfield, Ohio 44902
Richland County, Case No. 2023 CA 0031 2
Wise, J.
{¶1} Defendant-Appellant, Daniel W. Overton, appeals his conviction and
sentence for a violation of R.C. 2950.05, failure to provide notice of change of address.
Plaintiff-appellee is the State of Ohio.
FACTS AND PROCEDURAL HISTORY
{¶2} In September, 2010, Overton was convicted of unlawful use of a minor in a
nudity-oriented material a violation of R.C. 2907.32.1 As a result of the conviction,
Overton was classified a Tier I sexually oriented offender requiring him to register his
address with the Sheriff’s Department for a period of fifteen years.
{¶3} This case arose in November, 2021, when Overton was indicted on one
count of Failure to Provide Notice of Change of Address, in violation of R.C.
2950.05(F)(1), a third-degree felony. The indictment stated that Overton was previously
convicted of a violation of R.C. 2950.04(E), failure to register as a sex offender in Morrow
County on October 27, 2020.
{¶4} Overton pleaded not guilty by reason of insanity and incompetent to stand
trial. On February 11, 2022, forensic examinations were ordered to determine his
competency and his mental condition at the time of the offense [NGRI].
{¶5} On May 13, 2022, Overton was found not competent to stand trial and was
committed to Heartland Behavioral Health. Later, he was transferred to Timothy Moritz
1R.C. 2907.32 defines the crime of pandering obscenity. During the trial, the state moved
to amend the indictment to illegal use of a minor in nudity-oriented material, a violation of
R. C. 2907.323. The trial court granted the motion over no objection by defense counsel,
Tr. III, 112-113.
Richland County, Case No. 2023 CA 0031 3
Center, Twin Valley Behavioral Healthcare, when he refused to take his medication and
became violent with staff, Tr. April 24, 2023, Judgment Entry, April 25, 2023.
{¶6} The trial court found Overton ineligible to use the NGRI defense when he
refused to be interviewed or participate in an evaluation. Tr. April 24, 2023, Judgment
Entry April 25, 2023.
{¶7} After one and a half years, Overton was found competent to stand trial and
a jury trial was held on May 9, 2023.
Evidence at Trial
{¶8} When Overton moved out of the Volunteers of America Center in March,
2021, he reported to Richland County Sherriff employee, Alisa Finley, that he was
homeless living in downtown Mansfield by the Gazebo. Tr. II at 20. Overton reported that
he had no vehicle to register. Finley recorded Overton’s information in an “Offender
Watch” software program that allows her and other counties to record notes and Overton
was told by Finley that he must return for his periodic yearly registration on October 22,
2021. Finley also told Overton that if he moved from the Gazebo site, he was required to
report any change of address to the Richland County Sheriff’s Office.
{¶9} On October 23, 2021, Finley received a tip that Overton was in Delaware
County.
{¶10} Delaware County Deputy Sheriffs had been dispatched to a boy scout camp
for an unidentified male, later identified as Overton, standing around a group of boys and
adults by a campfire. Overton told the Deputies he was just “enjoying the fire.” Overton
was carrying a backpack with his possessions including a sleeping bag or blanket. Tr. III,
at 54. He was issued a warning for trespassing and walked off the property by the Deputy
Richland County, Case No. 2023 CA 0031 4
Sheriffs. A warning letter that Overton had failed to register for his periodic registration
was also issued by the Richland County Deputy Sheriff and stapled on the Gazebo in
downtown Mansfield.
{¶11} On October 25, 2021, Finley received another tip that Overton was in
Delaware County. Delaware County Deputy Sheriffs were dispatched to Ohio Wesleyan
University on a report of a suspicious person later identified as Overton. Overton had
joined a group of new college recruits and their parents touring the campus. Overton was
carrying his backpack with his possessions including a blanket or a sleeping bag. He also
had a bag of food. Tr. III, at 123. He was taken to Grady Memorial Hospital in Delaware
County for a mental health evaluation.
{¶12} Because Overton did not report to Finley that he had moved from the
Gazebo in downtown Mansfield and because he did not report for his periodic yearly
mandatory registration, a warrant was issued for his arrest by Sergeant Alfrey of the
Richland County Sheriff’s Department.
{¶13} Overton was found in Marion County on November 16, 2021 and arrested
on a warrant for failure to register as a sex offender. Tr. III, at 61.
{¶14} After hearing this evidence and receiving instructions from the trial court,
the jury returned with a verdict of guilty to the charge of failing to notify the sheriff of a
change of address.
Sentence
{¶15} Overton returned to the trial court for sentencing on May 11, 2023. Overton
was sentenced to thirty six months on the underlying conviction, as well as a thirty six
month maximum enhancement as a repeat offender under R.C. 2950.99 (A)(1)(b)(iii). In
Richland County, Case No. 2023 CA 0031 5
all, Overton was sentenced to a prison term of seventy-two months with 488 days credit
for time served. Tr. IV, Sentencing at 183-184. 2
{¶16} Overton appeals his conviction assigning one assignment of error.
ASSIGNMENT OF ERROR
{¶17} “THE EVIDENCE IN THIS CASE WAS INSUFFICIENT AS A MATTER OF
LAW TO SUPPORT A CONVICTION OF THE CHARGES IN THE INDICTMENT AND
AS A RESULT, THE APPELLANT’S RIGHTS AS PROTECTED BY ARTICLE I,
SECTION SIXTEEN OF THE OHIO CONSTITUTION AND THE 5TH AMENDMENT OF
THE UNITED STATES CONSTITUTION WERE VIOLATED.”
Law and Analysis
{¶18} In his only assignment of error, Overton claims that his judgment of
conviction is not supported by the sufficiency of the evidence. We disagree.
{¶19} An appellate court’s function when reviewing the sufficiency of the evidence
is to determine 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. State v. Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492,
paragraph two of the syllabus (1991); State v. Fluharty, 5th Dist., Stark No. 2011CA00231,
2012-Ohio-4258, ¶ 26.
2 Overton’s sentence was permitted for a repeat offender. Overton received a mandatory
three-year prison sentence. In addition to the mandatory three-year sentence, the trial
court imposed an additional prison term of 36 months. State v. Ashcraft, 171 Ohio St.3d
747, 2022-Ohio-4611, 220 N.E.3d 749, syllabus (”We hold that a three-year prison term
imposed under R.C. 2950.99(A)(2)(b) is to be imposed ‘[i]n addition to’ any prison term
imposed under ‘any other provision of law.’”)
Richland County, Case No. 2023 CA 0031 6
{¶20} Under R.C. 2950.05(A), an offender must provide written notice of any
change of residence address to the sheriff with whom the offender most recently
registered at least 20 days prior to changing the residence address. If a residence address
change is not to a fixed address the offender must include a ‘detailed description of the
place or places at which the offender ... intends to stay’ not later than the end of the first
business day immediately following the date of the fixed residence.
{¶21} R.C. 2950.05(F)(1) provides: “No person who is required to notify a sheriff
of a change of address pursuant to division (A) ... shall fail to notify the appropriate sheriff
in accordance with that division.”
{¶22} Homelessness is not an excuse for failing to provide a change of address.
This Court has held that the purpose of the reporting statute is to locate and keep track
of sexually oriented offenders. State v. Parrish 5th Dist., Licking No. 00-CA-0070, 2000
WL 1862821 (Dec. 18, 2000) *1. (“[T]o allow a homeless defense to the registration
provision would frustrate the legislative purpose.”).
{¶23} Change in address includes any circumstance in which the old address for
the sexual offender is no longer valid, regardless of whether the offender has a new
address. R.C. 2950.05(I). In other words, an address changes when one no longer lives
at the address given to the sheriff of the county in which the offender resides. State v.
Ohmer 162 Ohio App. 3d 150, 2005-Ohio-3487, 832 N.E.2d 1243, ¶ 18 (1st Dist.).
{¶24} Thus, to prove Overton violated R.C. 2950.05, the state was required to
prove that he no longer lived in the vicinity of the Gazebo in downtown Mansfield, Ohio.
{¶25} Circumstantial evidence is as strong as direct evidence. In re. D.G., 5th
Dist., Stark No. 2023 CA 00014, 2023-Ohio-3859, citing State v. Jenks, supra ¶ 29; State
Richland County, Case No. 2023 CA 0031 7
v. Sanchez-Sanchez, 8th Dist., Cuyahoga No. 110885, 2022-Ohio-4080, ¶ 117
(“Circumstantial evidence is evidence that requires drawing of inferences that are
reasonably permitted by the evidence.”) “Circumstantial evidence is the proof of facts by
direct evidence from which the trier of fact may infer or derive by reasoning other facts in
accordance with the common experience of mankind.” State v. Wells, 8th Dist., Cuyahoga
No. 109787, 2021-Ohio-2585, ¶ 26.
{¶26} Here, the state presented evidence that Overton was in Delaware County
at a boy scout camp on October 23, 2021 with his backpack full of his belongings including
his sleeping bag or a blanket. On October 25, 2021, the state presented evidence that
Overton was in Delaware County at Ohio Wesleyan College with his backpack full of his
possessions and a bag of food. And finally, on November 16 2021, the state presented
evidence that Overton was in Marion County. Overton also reported to the sheriff that he
did not own a vehicle.
{¶27} The state presented overwhelming circumstantial evidence that Overton
had abandoned his residence in the vicinity of the Gazebo in downtown Mansfield, Ohio
and never reported a change of address to the sheriff of Richland County or reported that
he had moved from the Gazebo in downtown Mansfield.
{¶28} So, too, the act of failing to register alone is sufficient to trigger criminal
punishments. State v. Cook, 83 Ohio St.3d 404, 419, 700 N.E.2d 570 (1998). This Court
as well as most other appellate districts have held that R.C. 2950.05 [failing to register a
change of address] is a strict liability offense because it was passed for the good of the
public welfare regardless of the offender’s state of mind. State v. Smithhislen, 5th Dist.,
Knox No. 16 CA 27, 2017-Ohio-5725, 93 N.E.3d 1274, ¶ 37; State v. Ramsey, 12th Dist.,
Richland County, Case No. 2023 CA 0031 8
Fayette No. CA2022-02-003, 2022-Ohio-3389, ¶13 (lists cases from other districts
holding sexual offender registration laws are strict liability offenses). Therefore, the state
did not have to prove that Overton had a certain level of culpability or mental state to
prove him guilty of the offense.
{¶29} We reject Overton’s sole assignment of error and affirm his conviction and
sentence.
CONCLUSION
{¶30} We overrule appellant’s sole assignment of error and affirm the judgment of
the Richland County Court of Common Pleas.
By: Wise, J.
Delaney, P. J., and
Hoffman, J. concur.
JWW/kt 0408