State v. Scott

[Cite as State v. Scott, 

.]




          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, 

,

, 

, and State v. Dunlap, 

,

, 

.         State v. Scott, __ Ohio St.3d __,

, __ N.E.2d __.

      {¶ 2} In State v. Scott, Cuyahoga App. No. 91890, 

, 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,

, 

, 

, 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