State v. Bizzell

[Cite as State v. Bizzell, 2014-Ohio-726.]
IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
MONTGOMERY COUNTY
STATE OF OHIO : Appellate Case Nos. 25905
: Appellate Case Nos. 25906
Plaintiff-Appellee :
: Trial Court Case Nos. 13-CR-310
v. : Trial Court Case Nos. 13-CR-2387
:
ADRIAN A. BIZZELL : (Criminal Appeal from
: (Common Pleas Court)
Defendant-Appellant :
:
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OPINION
Rendered on the 28th day of February, 2014.
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MATHIAS H. HECK, JR., by MICHELE D. PHIPPS, Atty. Reg. #0069829, Montgomery
County Prosecutor’s Office, Appellate Division, Montgomery County Courts Building, P.O. Box
972, 301 West Third Street, Dayton, Ohio 45422
Attorneys for Plaintiff-Appellee
KIRSTEN KNIGHT, Atty. Reg. #0080433, Post Office Box 137, Germantown, Ohio 45327
Attorney for Defendant-Appellant
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FAIN, J.
{¶ 1} Defendant-appellant Adrian A. Bizzell appeals from his convictions and
sentences for two counts of Failure to Notify, in violation of R.C. 2950.05(A)(F)(1), felonies of
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the third degree. Bizzell contends that his convictions are void, and must be vacated, because he
was not provided with sufficient notice of his registration duties pursuant to R.C. 2950.03(A) and
2950.03(B)(1). Bizzell also contends that he established the affirmative defense of
impossibility, through evidence of his homelessness.
{¶ 2} We conclude that Bizzell’s convictions are not void and that he did not
establish the affirmative defense of impossibility. Accordingly, the judgments of the trial court
are Affirmed.
I. Bizzell Is Adjudicated a Sexually Oriented Offender and Fails to Notify
the Montgomery County Sheriff’s Office of a Change in Address
{¶ 3} In September 1999, Adrian A. Bizzell was convicted of two counts of Gross
Sexual Imposition. He was sentenced to four years in prison on each of the two counts, to be
served concurrently. The October 4, 1999 termination entry stated, in part:
The Court finds defendant has been convicted of a sexually oriented
offense(s) AND the Court finds defendant to be a sexually oriented offender by
Ohio Revised Code 2950.01(D) and;
The Court advised the defendant of his/her requirement to register as a sex
offender, as defined by Ohio Revised Code 2950.03 & 2950.04 AND the Director
or Chief Administrative Officer of the defendant’s detention facility or
correctional institution shall provide notice to the defendant at least ten (10) days
before the defendant is released.
{¶ 4} In October 2005, Bizzell was convicted of one count of Failure to Notify and
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sentenced to two years in prison in Montgomery County Case No. 2005 CR 2523.
On January 4, 2013, Bizzell signed a Notice of Registration with the Montgomery County
Sheriff’s Office. The Notice set forth his registration duties and warned of criminal prosecution
if he failed to register, failed to verify residence at the specified times, or failed to provide notice
of a change in address.
{¶ 5} A month later, in Montgomery County Case No. 2013 CR 0310, a Montgomery
County Grand Jury indicted Bizzell on one count of Failure to Notify, in violation of R.C.
2950.04, a third-degree felony. This indictment related to criminal activity that allegedly
occurred between January 2, 2013 and January 30, 2013. Following a bench trial, Bizzell was
found guilty of one count of Failure to Notify.
{¶ 6} In August 2013, in Montgomery County Case No. 2013 CR 2387, a
Montgomery County Grand Jury indicted Bizzell on one count of Failure to Notify, in violation
of R.C. 2950.04, a third-degree felony. This indictment related to criminal activity that allegedly
occurred between February 13, 2013 and August 28, 2013. Bizzell pled no contest to the Failure
to Notify charge and was found guilty by the trial court.
{¶ 7} Bizzell was sentenced in Case Nos. 2013 CR 0310 and 2013 CR 2387 on
September 3, 2013. The trial court sentenced Bizzell to twelve months in prison on each of the
two counts of Failure to Notify and ordered the sentences to be served concurrently with each
other. From his convictions and sentences, Bizzell appeals.
II. Bizzell’s Convictions Are Not Void, and Bizzell
Failed to Establish the Affirmative Defense of Impossibility
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{¶ 8} Bizzell’s sole assignment of error states:
JUDGMENT OF CONVICTION AGAINST THE DEFENDANT –
APPELLANT IS VOID AND MUST BE VACATED ON THE GROUNDS
THAT THE STATE FAILED TO FULFILL ITS NOTIFICATION
REQUIREMENTS TO THE DEFENDANT PURSUANT TO R.C. 2950.03,
CONTRARY TO THE GUARANTEES OF DUE PROCESS OF LAW.
{¶ 9} R.C. 2950.03(A) states that certain officials shall provide notice to sexually
oriented offenders of the obligation to register. R.C. 2950.03(B) sets forth what information
should be provided in this notice. According to Bizzell, “no evidence was presented that the
State complied with its notification requirements to the Defendant.” Brief, p. 4. Bizzell
contends that his convictions for Failure to Notify are therefore void and should be vacated. We
do not agree.
{¶ 10} The Eighth District Court of Appeals rejected a similar contention in State v.
Freeman, 8th Dist. Cuyahoga No. 86740, 2006-Ohio-2583. The court held, at ¶ 14:
Both the State’s and Freeman’s arguments appear to be based on the
erroneous assumption that the trial court’s notice to a defendant who has pled
guilty to a sexually oriented offense of his duty to register with the county sheriff
upon his release from prison triggers the duty to register and without such notice,
Freeman is not obligated to report. As the Ohio Supreme Court made clear in
State v. Hayden, 96 Ohio St.3d 211, 2002-Ohio-4169, however, once a defendant
is convicted of a sexually oriented offense, he is “automatically classified as a
sexually oriented offender and therefore must register with the sheriff of the
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county in which he resides as prescribed by R.C. 2950.04(A)(2).” Id. at ¶ 15.
(Emphasis added). Thus, upon conviction of a sexually oriented offense, the
classification and the duty to register arise by operation of law. Id.; see, also,
State v. Moncrief, Cuyahoga App. No. 85479, 2005-Ohio-4812, at ¶ 23; State v.
Grider (2001), 144 Ohio App.3d 323; State v. Mickey (Apr. 5, 2001), Cuyahoga
App. No. 77889. Accordingly, although the trial court should have given
Freeman notice at his sentencing of his duty to report, its failure to do so does
not affect his duty to register.
{¶ 11} We agree with the analysis in Freeman. Furthermore, the State submitted
evidence to the trial court that Bizzell was informed of his registration duties, both in the 1999
termination entry, and in subsequent documents Bizzell signed. On the other hand, Bizzell did
not offer any evidence that he was not informed of his registration duties. Indeed, the evidence
of record shows that Bizzell, at times, did comply with his registration duties. However, the
State established at trial that Bizzell failed to fulfill his notification duties for the two relevant
periods in the indictments. Consequently, we conclude that the trial court did not err in
convicting Bizzell of two counts of Failure to Notify.
{¶ 12} Bizzell also contends that the trial court erred in failing to find that Bizzell had
established the affirmative defense of impossibility. According to Bizzell, his status as a
“vagrant” is sufficient to establish impossibility. Brief, p. 4. We do not agree.
{¶ 13} R.C. 2950.05 (G)(1) sets forth an affirmative defense to the charge of failure to
notify. That section provides:
(G) (1) It is an affirmative defense to a charge of a violation of division
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(F)(1) of this section that it was impossible for the person to provide the written
notice to the sheriff as required under division (A) of this section because of a lack
of knowledge * * * of a residence * * * address change, and that the person
provided notice of the residence * * * address change to the sheriff specified in
division (A) of this section as soon as possible, but not later than the end of the
first business day, after learning of the address change by doing either of the
following:
(a) The person provided notice of the address change to the sheriff
specified in division (A) of this section by telephone immediately upon learning of
the address change * * * .
(b) The person, as soon as possible, but not later than the end of the first
business day, after learning of the address change, provided written notice of the
address change to the sheriff specified in division (A) of this section.
{¶ 14} The defense of impossibility based solely on homelessness has been rejected by
a number of Ohio’s appellate districts. In State v. Watkins, 6th Dist. Lucas No. L-11-1085,
2013-Ohio-2030, ¶ 32, the Sixth District Court of Appeals explained:
The provisions of R.C. 2950.05 * * * clearly provide that the registration
requirements apply equally to homeless individuals. State v. Lowry, 12th Dist.
No. CA2010-12-036, 2011-Ohio-2850, ¶ 18. Moreover, former R.C. 2950.05(H)
(now R.C. 2950.05(I)) states that “change of address” includes “any circumstance
in which the old address for the person in question no longer is accurate,
regardless of whether the person in question has a new address.” To establish the
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affirmative defense of impossibility, the offender must show that on the date when
he was required to notify the sheriff of his change of address (i.e. 20 days before
the change), he did not know that his address was going to change. He must then
notify the sheriff as soon as possible, but no later than the end of the first business
day after learning of the address change. If an offender is homeless, he is to
include in the notice “a detailed description of the place or places” he intends to
stay. Homelessness, therefore does not make it impossible to comply with the
registration requirements of R.C. 2950.05. Lowry, at ¶ 19; State v. Ohmer, 162
Ohio App.3d 150, 2005-Ohio-3487, 832 N.E. 2d 1243, ¶ 20-21 (1st Dist.).
{¶ 15} We agree with the reasoning expressed in Watkins. The fact that Bizzell may
have been homeless does not, in and of itself, establish that it was impossible for him to comply
with the registration requirements. Furthermore, the State provided testimony that Bizzell had
acknowledged that he had provided an incorrect address when he first registered at the
Montgomery County Sheriff’s Department, and that he subsequently stayed at a new residence
for at least four consecutive days without providing notice of a change in address. Bizzell did
not establish that it was impossible for him to provide notice of either of these addresses.
{¶ 16} Bizzell’s sole assignment of error is overruled.
III. Conclusion
{¶ 17} Bizzell’s sole assignment of error having been overruled, the judgment of the
trial court is Affirmed.
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DONOVAN and WELBAUM, JJ., concur.
Copies mailed to:
Mathias H. Heck
Michele D. Phipps
Kirsten Knight
Hon. Gregory F. Singer