State v. Kohler

[Cite as State v. Kohler, 

.]

                                 COURT OF APPEALS OF OHIO

                               EIGHTH APPELLATE DISTRICT
                                  COUNTY OF CUYAHOGA

STATE OF OHIO,                                     :

                 Plaintiff-Appellee,               :
                                                            No. 113394
                 v.                                :

BRANDON KOHLER,                                    :

                 Defendant-Appellant.              :



                                JOURNAL ENTRY AND OPINION

                 JUDGMENT: AFFIRMED
                 RELEASED AND JOURNALIZED: August 29, 2024


          Criminal Appeal from the Cuyahoga County Court of Common Pleas
                             Case No. CR-21-664842-A


                                             Appearances:

                 Flowers & Grube, Louis E. Grube, and Kendra N. Davitt,
                 for appellant.

                 Michael C. O’Malley, Cuyahoga County Prosecuting
                 Attorney, Glen Ramdhan and Daniel T. Van, Assistant
                 Prosecuting Attorneys, for appellee.


MARY EILEEN KILBANE, P.J.:

                   Defendant-appellant Brandon Kohler (“Kohler”) appeals his

convictions and sentencing. For the following reasons, we affirm.
Factual History

               Kohler’s convictions stem from alleged sexual conduct between

Kohler and two victims — H.K. and A.W. — that occurred during the course of

Kohler’s employment as a corrections officer at the Northeast Reintegration Center

(“NRC”) in Cleveland, Ohio. At all relevant times, H.K. and A.W. were inmates at

the facility. Female inmates transfer to NRC, a minimum-security correctional

facility, as a step-down facility that helps the inmates successfully transition to their

eventual release from prison.

H.K.

               H.K., a convicted felon and prior inmate at NRC, first encountered

Kohler in September 2019 when H.K. worked as a dishwasher in NRC’s kitchen, and

Kohler worked for Aramark, NRC’s food service provider. Kohler served in a

supervisory position over H.K. and any reported problems by Kohler about the

inmate could have resulted in H.K.’s punishment. While Aramark staff was not

supposed to share personal information with inmates, Kohler and H.K. had personal

conversations during their shifts together.

               In December 2019, Kohler started his employment at NRC as a

corrections officer. In that capacity, Kohler had more authority over H.K. H.K.

allegedly saw Kohler frequently since they both worked the third shift at NRC and,

according to H.K., they “were pretty much the only people awake.” Tr. 248. H.K.

stated that in the spring of 2020, Kohler had more conversations with her, and

Kohler provided H.K. with candy a few times.
              Kohler allegedly hugged H.K. for the first time in the spring of 2020.

This occurred in the foyer of H.K.’s cell, between 2:00 and 4:00 a.m., when H.K.’s

roommates were sleeping and the lights were turned off. The physical contact with

Kohler resulted in mixed emotions for H.K.: she realized she could get in trouble for

the behavior, and she was surprised to realize someone may be interested in her

despite her criminal background. H.K. thought “I’m special, there’s 500 people

here, and he is giving me attention.” Tr. 257. When Kohler did rounds again the

following hour, he allegedly kissed H.K. and she kissed him back. H.K. testified that

she liked the thought of having a relationship during the remainder of her time at

NRC but she was also concerned about jeopardizing her possibility of judicial

release.

              H.K. testified that on an unspecified date, Kohler asked her to clean

the rooms in Building M where no one was residing. H.K. was not required to clean

Building M on that date, but she was “excited” for the “extra interaction” with

Kohler. Tr. 264-265. H.K. testified that Kohler completed his rounds that evening

every 30 to 60 minutes, walking through the hallways and entering the cells; in

between rounds, Kohler sat at a first-floor desk. H.K. testified that she and Kohler

engaged in sexual conduct four different times throughout her shift — two instances

of cunnilingus, one instance of fellatio, and one instance of digital penetration of

H.K.’s vagina. At a later date, Kohler allegedly performed cunnilingus on H.K. in

her bathroom, late at night. H.K. testified that she did not know if her roommate

C.S. observed that interaction. NRC’s security cameras do not record inside the
inmate’s cells or bathrooms so none of the alleged sexual conduct was captured on

camera.

               H.K. also testified that she and Kohler spoke flirtatiously with one

another, and Kohler once grabbed her buttocks.

               H.K. testified that she told C.S. as well as a former inmate, C.H., about

her sexual interactions with Kohler. H.K. testified that she and C.H. spoke on the

telephone about Kohler and H.K. wrote a letter to C.H. about Kohler; on the

telephone and in the letter, the women used the code name “Amber” to reference

Kohler. The letter stated:

      Bunkie, April 20, 2020
      Oh my God!!! I have been trying to call you to tell you something
      important. Then I realized that even with code names I should not say
      it over the phone. “Amber” kissed me. It was 3rd shift. We made out
      all my [sic] night. I didn’t go to bed until 5:30. “She” grabbed me —
      grabbed a handful of that fat ass too! Under the shorts (with a wink
      face). “She” said I’m perfect. You know I’ve had a crush on “her”
      forever! Only seven months until I file. Then I can tell you everything.
      Don’t bring it up on the phone. I’ll write you as it goes on. I wish you
      were here to enjoy this with me!! I love you, Bunkie! I cannot believe
      this is happening. Love, H.M.

Tr. 298.1

               Lloyd Brownlee (“Brownlee”), an Ohio Department of Rehabilitation

and Correction (“ODRC”) investigator, first discovered the alleged sexual conduct

between H.K. and Kohler in October or November 2020. During an investigation

on an unrelated issue, Brownlee listened to jailhouse calls between H.K. and a




      1 H.K.’s letter was marked at trial as State’s exhibit No. 69.
former inmate, C.H. The women initially referenced the “bearded man” who they

later called “Amber.” The women also discussed a person they called Mr. K.

Brownlee ascertained the women were discussing Kohler. Brownlee’s investigation

then included listening to jailhouse calls from several months prior to the incident

to ascertain if he heard any references to inappropriate conduct, including sexual

misconduct. During one tape recorded conversation, C.H. asked H.K. if any sexual

contact had occurred with “Amber,” and H.K. responded, “It’s all in the letter.” Tr.

168. C.H.’s home was searched, and the aforementioned letter was found.

              On February 9, 2021, Brownlee interviewed H.K.            H.K. initially

denied any sexual conduct but once Brownlee told her that he knew the identity of

“Amber,” she conceded that she engaged in sexual conduct with Kohler. The State

played the recording of that interview at trial. H.K. had a calendar where she marked

the days she had sexual contact with Kohler; the State introduced this calendar as

an exhibit at trial. After revealing her alleged sexual conduct with Kohler, the NRC

punished H.K. by placing her in “the hole” — a type of restrictive confinement — for

30 days, where she remained until her judicial release in March 2021.

              Following her judicial release, H.K. filed a lawsuit against Aramark

Correction Services, Kohler, and a number of NRC employees. According to H.K.,

that lawsuit is closed. H.K. also testified that she has anger issues, and she “had a

crush” on Kohler. Tr. 292.

              C.S. and C.M., H.K.’s former cellmates, testified at trial about H.K.

and Kohler’s interactions. C.S. testified that between April 2020 and February 2021,
she observed inappropriate behavior between H.K. and Kohler including flirting,

touching, giggling, and conversations at the commanding officer’s station situated

in the center of the prison unit. C.S. further testified that the behavior made her

uncomfortable, and she was concerned that she might get caught up in the situation

and get in trouble. C.S. testified about Kohler’s use of rude language with inmates

other than H.K. C.S. also stated that one night Kohler kept entering the foyer of their

cell and disturbing C.S. so that she told him to stop or she would report him. C.S.

was no longer incarcerated at the time of trial.

               C.M. testified that Kohler paid more attention to H.K. than other

inmates, and she observed H.K. often standing behind the commanding officer’s

desk with Kohler. C.M. further testified that during a third shift, Kohler requested

H.K. clean a specific unit, and when H.K. returned that evening she informed C.M.

that they had “kissed and touched.” Tr. 319. C.M. said she also heard H.K. on the

telephone talking about her interactions with “Amber,” whom C.M. knew to be

Kohler. C.M. stated she did not want to know too much information for fear that

her knowledge could result in her transfer to another institution.

A.W.

               Kohler’s second victim, A.W., a convicted felon and prior inmate at

NRC, also testified that she engaged in sexual conduct with Kohler including one

incident of cunnilingus and two incidents of digital penetration, while incarcerated

at NRC.
               A.W. testified that she met Kohler when they both worked in NRC’s

kitchen. A.W. stated they worked on different shifts, but Kohler was her supervisor

and had authority over her. A.W. further stated that while Kohler was employed in

the kitchen, he was friendly with A.W. and told her she was pretty. A.W. testified

that after Kohler became a corrections officer, Kohler continued to compliment A.W.

               A.W. testified that between December 2020, and June 24, 2021,

Kohler kissed her in her cell, performed cunnilingus on her once, and digitally

penetrated her twice. A.W. testified the incidents of digital penetration occurred

when she was in her bunk and her cellmate was sleeping in the room; A.W. stated

she was worried that her cellmate would know what was happening and she was

afraid of getting in trouble. A.W. testified that Kohler walked in on her when she

was showering and grabbed her from behind, and this constituted unwanted

attention. A.W. further stated that she did not feel she had the power to tell Kohler

to stop. A.W stated she did not want to tell anyone at NRC what was happening for

fear of losing privileges or not being believed.

               A.W. testified that her cellmate, C.Mc., noticed Kohler often entered

their cell upon her departure, and she asked A.W. about the situation. A.W. further

testified that she told C.Mc. inappropriate behavior was occurring, but she did not

provide many details because she “didn’t trust anybody.” Tr. 388.

               C.Mc., a former cellmate of A.W., testified that Kohler often entered

their cell and lingered when doing rounds. C.Mc. never observed any physical

contact between the two, although they “might have been a little flirtatious.” Tr.
328. According to C.Mc., A.W. had feelings for Kohler; C.Mc. described A.W. as an

attention seeker. C.Mc. stated she did not communicate to others what she observed

because she did not “want to be part of drama within the institution.” Tr. 329.

               The following events on June 24, 2021, led to NRC staff recognizing

sexual conduct may have occurred between Kohler and A.W. On that date, Kohler

entered A.W.’s cell, and case manager Taylor Lawson (“Lawson”) unexpectedly

entered the cell after him. A.W. testified that both she and Kohler were surprised by

Lawson’s presence, and A.W. stated that Kohler had touched her breasts, arms, and

shoulder before Lawson entered the room. Lawson observed Kohler’s hands on

A.W.’s shoulder and elbow as if he was about to embrace her. After Lawson left the

cell, Kohler allegedly told A.W. that he would “take care of it” or try to cover up the

fact that they had physical contact. Tr. 364.

               Lawson testified that Kohler looked alarmed when he saw her in

A.W.’s cell, and he frantically started kicking shoes on the ground and shuffling

through the inmates’ belongings. Lawson described A.W. as being “frozen” and

answering Lawson’s questions succinctly. Lawson stated that following the incident,

she and Kohler spoke in Lawson’s office, and Kohler told Lawson that he was

consoling A.W. Lawson also testified that Kohler told her he had not been on his

medications; he fu***d up; he was not himself; and people at NRC were starting

rumors that were untrue. Lawson reported the incident to her supervisor.

               Two days later, Brownlee interviewed Lawson and A.W. Brownlee

testified that A.W. was “very nervous, very afraid, [and] scared” at the start of her
interview, and she initially denied any wrongdoing. Tr. 178. Later that same day,

A.W. made a statement that alleged sexual abuse by Kohler, and Brownlee returned

to interview A.W. a second time.

                 A.W. testified that she was willing to speak about the sexual conduct

with Kohler once Brownlee assured her that she would not get into trouble. A.W.

further testified that she knew what had happened was wrong, and she wanted staff

to know about what had occurred. A.W. claimed the sexual conduct took place over

almost a year.

                 Following A.W.’s release from NRC in November 2021, and a

subsequent halfway house in March 2022, A.W. filed a lawsuit against Kohler and

other NRC employees, and the lawsuit was still pending at the time of trial.

ODRC Investigators

                 In addition to the testimony of H.K., A.W., and their former cellmates,

several ODRC investigators testified about the investigation of Kohler’s sexual

conduct and ODRC policies.         Trial testimony established that ODRC policies

prohibit unauthorized relationships between inmates and correction officers,

including sexual conduct and sharing personal information. Corrections officers

undergo annual training regarding unauthorized relationships with inmates.

Additionally, NRC informs inmates when they first enter the institution that they

can report abuse that occurs within the facility to staff members, and physical and

verbal relationships are not permitted between the inmates and corrections officers.

Several ODRC investigators testified that inmates are often reluctant to tell staff
about unauthorized sexual conduct due to distrust of the investigators as well as fear

of retaliation; punishment; being returned to a more restrictive prison; and any

adverse impact on the inmate’s potential early release.        Punishment included

placement in “the hole” which entailed isolation in a one-person cell where the

inmate lived and took her meals. H.K. and A.W. testified that these fears caused

them to deny any sexual conduct occurred with Kohler during Brownlee’s initial

questioning.

Procedural History

               On September 14, 2022, a Cuyahoga County Grand Jury indicted

Kohler on eight counts of sexual battery in violation of R.C. 2907.03(A)(11), alleging

that the victims were confined in a detention facility and Kohler was an employee of

that detention facility when the offenses occurred. Counts 1 through 5 alleged that

between April 1, 2020, and February 9, 2021, Kohler engaged in three counts of

cunnilingus, one count of digital penetration, and one count of fellatio with H.K.2

Counts 6 through 8 alleged that between December 1, 2020, and June 24, 2021,

Kohler engaged in three counts of digital penetration with A.W.3 On October 3,

2022, Kohler pleaded not guilty to the charges.




      2 H.K. was originally referenced in the indictment as Jane Doe 1 (d.o.b.:
4/10/1992).

      3 A.W. was originally referenced in the indictment as Jane Doe 2 (d.o.b.:
7/14/1985).
               On August 25, 2023, the State filed an unopposed motion requesting

that the court allow the jury to view, in person, the NRC facility where the alleged

incidents occurred so as to see the design and layout of the housing units and “better

understand the case.” On September 2, 2023, defense counsel filed an unopposed

motion in limine to exclude evidence of prior acts pursuant to Evid.R. 404(B)(1).

Specifically, Kohler asked the court to exclude testimony from C.S. who supposedly

would testify that she witnessed Kohler tickle one of the alleged victims. The motion

in limine stated this testimony was merely intended to establish Kohler’s character,

and the State lacked “substantial proof” that the alleged act occurred. There was no

hearing on the motion in limine prior to trial, and the court did not rule on the

motion.4

               On September 22, 2023, the State filed a notice of intent to introduce

other acts evidence in accordance with Evid.R. 404(B) and R.C. 2945.59. The State

anticipated introduction of C.S.’s testimony — about the frequency with which

Kohler visited H.K.’s cell and about her observing Kohler tickling H.K. — to prove

motive, intent, plan, preparation, and opportunity.

               The case proceeded to trial, during which a jury view was conducted.

Kohler made Crim.R. 29 motions that the trial court denied. Kohler did not present

any witnesses on his behalf; defense counsel argued in opening and closing

statements that the witnesses lacked credibility and there was no surveillance



      4 This court presumes motions that are not ruled upon are deemed denied by the

trial court. See State v. Robinson, 

 (8th Dist.).
footage that corroborated their allegations. Prior to jury deliberations, the trial court

amended Count 8 to allege cunnilingus rather than digital penetration.               On

September 28, 2023, the jury returned a guilty verdict on all eight counts of sexual

battery. The trial court referred Kohler for a presentence investigation and report

(“PSI”) and ordered Kohler to report to probation for the installation of a GPS

monitor.

               On October 10, 2023, in anticipation of the court’s ruling on the issue,

Kohler filed an objection to the court’s designation of him as a sex offender under

R.C. Ch. 2950, and on October 16, 2023, Kohler filed a sentencing memorandum

asking the court to consider a sentence of probation.

               On October 23, 2023, the trial court sentenced Kohler to 12 months

on each of the eight counts, with all counts to be served concurrently. The trial court

denied Kohler’s objection to his designation as a sex offender and classified Kohler

as a Tier III sexual offender pursuant to the Adam Walsh Act. The court stayed

execution of Kohler’s sentence pending his appeal.

               On November 21, 2023, Kohler filed a timely notice of appeal,

presenting two assignments of error:

      Assignment of Error I: The trial court erred and committed plain error
      by admitting substantial evidence of other wrongs and bad acts in
      violation of Evid.R. 403(A) and 404(B).

      Assignment of Error II: The trial court erred and invaded the
      constitutional role of the jury by classifying defendant Kohler as a Tier
      III sex offender under the Adam Walsh Act without submitting fact
      questions of consent or custodial authority to the jury.
Legal Analysis

Evid.R. 404(B)

              In his first assignment of error, Kohler argues that the trial court

erred when it admitted substantial evidence of other wrongs and bad acts in

violation of Evid.R. 403(A) and 404(B).

              “Evidence that an accused committed a crime other than the one for

which he is on trial is not admissible when its sole purpose it to show the accused’s

propensity or inclination to commit crime, or that he acted in conformity with bad

character.” State v. Williams, 

. However, Evid.R. 404(B)(2)

identifies exceptions where other acts of wrongdoing are admissible for

nonpropensity purposes:

      [Evidence of any other crime, wrong or act] may, be admissible for
      another purpose, such as proving motive, opportunity, intent,
      preparation, plan, knowledge, identity, absence of mistake, or lack of
      accident.

              Where the evidence of other wrongs or bad acts, also referenced as

the other-acts evidence, is offered for a permissible purpose, trial courts have

discretion to admit the evidence. State v. Hartman, 

, citing

Leonard, The New Wigmore: Evidence of Other Misconduct and Similar Events,

Section 4.10 (2d Ed. 2019). In Williams, the Ohio Supreme Court provided a three-

step analysis for courts to determine the admissibility of other-acts evidence: (1)

was the evidence relevant, (2) was the evidence presented for a legitimate purpose
under Evid.R. 404(B)(2), and (3) was the probative value of the evidence

substantially outweighed by the danger of the unfair prejudice.

               Further, “whether the other-acts evidence is relevant under the first

step of Williams is dependent upon whether the evidence is offered for a

nonpropensity purpose as set forth in the second step of Williams, i.e., a legitimate

purpose for which the evidence is offered, and whether the nonpropensity purpose

goes to a material issue in the case.” State v. Hale, 

 (8th Dist.).

               “We review the admissibility of other-acts evidence de novo.

However, ‘we review the trial court’s weighing of the probative value of admissible

evidence against the danger of unfair prejudice to the defendant for an abuse of

discretion.’” (Cleaned up.) In re J.P., 

 (1st Dist.).

               Kohler was charged with and convicted of sexual battery in violation

of R.C. 2907.03(A)(11), which reads: “No person shall engage in sexual conduct with

another, not the spouse of the offender, when . . . [t]he other person is confined in a

detention facility, and the offender is an employee of that detention facility.” Sexual

conduct has been statutorily defined as

      vaginal intercourse between a male and female; anal intercourse,
      fellatio, and cunnilingus between persons regardless of sex; and,
      without privilege to do so, the insertion, however slight, of any part of
      the body or any instrument, apparatus, or other object into the vaginal
      or anal opening of another. Penetration, however slight, is sufficient to
      complete vaginal or anal intercourse.

R.C. 2907.01(A).
              Here, Kohler argues evidence of his flirting, touching, and kissing

H.K. and A.W. should have been excluded because the behavior was not directly

linked to the charged crimes. Kohler also challenges the introduction of testimony

about his preferential treatment of H.K. and A.W. over other inmates and how his

conduct violated ODRC policies.

              The State counters that the referenced evidence was not offered to

prove Kohler had a propensity to sexually abuse women in custody but to provide

context, background information, and the setting of the case. Alternatively, the State

argues the evidence was presented to establish Kohler’s motive and intent.

              Relevant to the State’s arguments, this court has found that

      Evid.R. 404(B) only applies to limit the admission of so-called “other
      acts” evidence that is “extrinsic” to the crime charged. State v.
      Stallworth, 11th Dist. Lake No. 2013-L-122, 

. In
      other words, “Evid.R. 404(B) does not apply when the acts are intrinsic
      as opposed to extrinsic, i.e., the acts are part of the events in question
      or form part of the immediate background of the alleged act which
      forms the basis for the crime charged.” State v. Crew, 2d Dist. Clark
      No. 2009 CA 45, 

, ¶ 99. Thus, “evidence of other
      crimes or wrongs may be admitted when such acts are so inextricably
      intertwined with the crime as charged that proof of one involves the
      other, explains the circumstances thereof, or tends logically to prove
      any element of the crime charged.” State v. Davis, 

, 

 (12th Dist.1989), citing State v. Wilkinson, 

, 

 (1980); State v. Long, 

, 

 (9th Dist.1989).

State v. Jones, 

 (8th Dist.), rev’d on other grounds. See also

State v. Baird, 

 (cleaned up) (S. Gallagher, J., concurring in

judgment only) (“‘[E]vidence of other crimes may be presented when “they are so

blended or connected with the one on trial as that proof of one incidentally involves
the other; or explains the circumstances thereof; or tends logically to prove any

element of the crime charged.”’”)

              In State v Bogan, 

 (8th Dist. Aug. 6,

1998), the appellant argued the trial court improperly allowed witness testimony

that he promoted prostitution prior to the date when appellant was arrested for the

offense. This court found the prior bad-acts testimony was not introduced as

propensity evidence but to demonstrate a continuing course of action. In other

words, “the evidence was part of the events in question or form[ed] part of the

immediate background of the alleged act which form[ed] the basis for the crime

charged.” 

. Thus, Evid.R. 404(B) did not apply to the intrinsic evidence,

and the evidence was properly admitted.

              Similarly, in State v. Crew, 

 (2d Dist.), the Second

District Court of Appeals found testimony that Crew acted previously as a pimp for

Hanson was intrinsic evidence showing the nature of Crew and Hanson’s

relationship at the time of the offense. The testimony was part of the immediate

background of the alleged act and was not subject to Evid.R. 404(B). The admissible

testimony in both Bogan and Crew did not occur contemporaneously with the

alleged offenses.

              The jury is entitled to hear evidence that allows them to gather “‘a

complete picture of what occurred’” and “fully comprehend the acts that formed the

immediate background of the charged crimes.” State v. Miller, 

 (8th Dist.) The alleged other-acts information provided the jury insight into
Kohler’s relationships with H.K. and A.W. and the setting at NRC. The inmates’

testimony corroborated Kohler’s preferential treatment of H.K. and A.W. over other

inmates. The testimony about ODRC policies demonstrated the behavior expected

by both Kohler and the victims and the reasoning why the women may have been

fearful to admit to the sexual conduct. This background information explained the

circumstances of the case by providing meaning to H.K. and A.W.’s testimony and

context to the events leading up to the charged offenses. Thus, the testimony in

dispute was not subject to Evid.R. 404(B) and was properly admitted by the trial

court.

                 Even assuming the testimony in question constituted other-acts

evidence subject to Evid.R. 404(B), we find the evidence would have been

admissible as common scheme or plan evidence.

         Scheme, plan, or system evidence is relevant in situations where the
         other acts form part of the direct background of the alleged act which
         forms the basis of the crime charged in the indictment. State v.
         Wilkinson (1980), 

, 

. “The
         federal courts in construing Federal Rules of Evidence 403 and 404(B),
         have noted that the jury is entitled to know the ‘setting’ of a case. It
         cannot be expected to make its decision in a void -- without knowledge
         of the time, place and circumstances of the acts which form the basis of
         the charge. 

.” “…[E]vidence of other crimes may be
         presented when ‘they are so blended or connected with the one on trial
         as that proof of one incidentally involves the other; or explains the
         circumstances thereof; or tends logically to prove any element of the
         crime charged.’” 

 citing United States v. Turner (C.A. 7, 1970), 

, United States v. Calvert (C.A. 9, 1975), 

.

State v. Vason, 

 (8th Dist.).
               We find that the challenged other-acts testimony provides

background information that is “so blended or connected” with the alleged crimes

of sexual battery that it explains the circumstances of the crimes and falls under an

exception to the admission of evidence under Evid.R. 404(B). Further, the probative

value of the evidence — to provide background and explain the circumstances — was

not substantially outweighed by the danger of unfair prejudice.

               In light of the foregoing, we cannot conclude that the admission of the

disputed testimony was an abuse of discretion. Therefore, Kohler’s first assignment

of error is overruled.

Tier III Sex Offender

               In his second assignment of error, Kohler argues that the trial court

violated his right to a jury trial, pursuant to the Ohio Const. art. I., § 5 and U.S.

Const., amend. VI, when the court classified him as a sex offender under R.C.

2950.01 rather than require the jury to decide if the sexual conduct in question was

consensual and if the sexual conduct occurred while H.K. and A.W. were under the

custodial authority of Kohler.

               Kohler was found guilty of sexual battery in violation of R.C.

2907.03(A)(11) because he engaged in sexual conduct with H.K. and A.W. — neither

of whom were his spouse — when H.K. and A.W. were confined at NRC, a detention

facility, and Kohler was an employee of NRC. A violation of R.C. 2907.03 represents

a sexually oriented offense. R.C. 2950.01(A)(1). One who commits a sexually
oriented offense is a sex offender, unless he or she falls into one of the two statutory

exceptions. R.C. 2950.01(B).

               Sex offenders are classified as Tier I, Tier II, or Tier III offenders

contingent upon the convicted offense. R.C. 2950.01. “Tier classification is based

solely upon the offense for which a person is convicted[,] and the judge has no

discretion to modify the classification.” State v. Blankenship, 

,

citing State v. Williams, 

. The tier status dictates the statutory

notification and registration requirements of the sex offender. R.C. 2950.03. A sex

offender convicted under R.C. 2907.03 is a Tier III sex offender unless he meets an

exception. R.C. 2950.01(G)(1)(a), R.C. 2950.01(B)(2).

               R.C. 2950.01(B)(2) states two exceptions to the designation of a sex

offender:

      (B)(2) “Sex offender” does not include a person who is convicted of,
      pleads guilty to, has been convicted of, has pleaded guilty to, is
      adjudicated a delinquent child for committing, or has been adjudicated
      a delinquent child for committing a sexually oriented offense if the
      offense involves consensual sexual conduct or consensual sexual
      contact and either of the following applies:

      (a) The victim of the sexually oriented offense was eighteen years of age
      or older and at the time of the sexually oriented offense was not under
      the custodial authority of the person who is convicted of, pleads guilty
      to, has been convicted of, has pleaded guilty to, is adjudicated a
      delinquent child for committing, or has been adjudicated a delinquent
      child for committing the sexually oriented offense.

      (b) The victim of the offense was thirteen years of age or older, and the
      person who is convicted of, pleads guilty to, has been convicted of, has
      pleaded guilty to, is adjudicated a delinquent child for committing, or
      has been adjudicated a delinquent child for committing the sexually
      oriented offense is not more than four years older than the victim.
R.C. 2950.01(B)(2)(a)-(b). Application of either exception first requires a finding

that the parties engaged in consensual sexual conduct.

               Following the jury’s verdict finding Kohler guilty of sexual battery and

before sentencing, Kohler filed a written objection to his designation as a sex

offender. Kohler’s written objection did not argue a constitutional violation, as he

now argues on appeal, but that the jury failed to make a finding of (1) lack of consent

or (2) custodial authority. Kohler argued that the State had the burden to prove the

R.C. 2950.01(B)(2) exceptions did not apply, and the State failed to do so. In

opposition, the State argued that it introduced sufficient evidence at trial

establishing Kohler’s custodial authority over H.K. and A.W. and lack of consent,

thereby negating application of the R.C. 2950.01(B)(2) exceptions.

               We note that because Kohler did not raise his constitutional

arguments at the trial court, we review this assignment of error for plain error. State

v. Dames, 

 (8th Dist.). Under the plain-error doctrine,

intervention by a reviewing court is warranted only under exceptional

circumstances to prevent injustice. 

 citing State v. Long, 

,

(1978), paragraph three of the syllabus (“Notice of plain error . . . is to be taken with

the utmost caution, under exceptional circumstances and only to prevent a

miscarriage of justice”). To prevail under plain error, Kohler must establish that “‘an

error occurred, that the error was obvious, and that there is “a reasonable probability

that the error resulted in prejudice,” meaning that the error affected the outcome of
the trial.’” 

 quoting State v. McAlpin, 

, quoting State v.

Rogers, 

, ¶ 22.

              The evidence established that sexual conduct occurred when Kohler

served in his role as an NRC corrections officer and while H.K. and A.W. were

inmates at NRC and, therefore, Kohler violated R.C. 2907.03(A)(11), a strict liability

offense. State v. Mole, 

. Strict liability offenses do not specify

any degree of culpability, and courts will “impose liability for simply doing [the]

prohibited act.” State v. Johnson, 

.

              R.C. 2907.03(A)(11), which criminalizes sexual conduct based solely

on the relationship of a detention-facility employee and detainee, applies “where the

defendant has a position of authority to prevent the defendant from taking

unconscionable advantage of the victim.” State v. Reyes-Rosales, 

 (4th Dist.). Further,

       [t]he purpose of the statute is to protect from sexual abuse those who
      come under the care and custody of the State. The statute is directed at
      those situations where the offender, through power conferred by the
      State, is able to coerce or force sexual activity by the misuse of that
      authority.

State v. Maresh, 

 (8th Dist.), quoting State v. Chipps, 

, *3 (3d Dist. May 17, 1983). The Ohio Supreme Court has

stated that the purpose of R.C. 2907.03 “is to protect particularly vulnerable people

. . . who are legally unable to consent to sexual activity, from the harms that flow

from sexual conduct.” 

.
               The jury’s verdict finding Kohler guilty of sexual battery in violation

of R.C. 2907.03(A)(11), impliedly determined that H.K. and A.W., inmates subjected

to sexual battery by Kohler in an authoritarian position, were legally unable to

consent to the sexual activity. Because H.K. and A.W. could not consent to sexual

conduct while they were inmates, the R.C. 2950.01(B)(2) exceptions — that apply

only upon a finding of consensual sexual conduct — are inapplicable and, by

operation of law, the trial court was mandated to designate Kohler as a sex offender.

Accordingly, it was not plain error for the trial court to designate Kohler as a Tier III

sex offender, and Kohler’s second assignment of error is overruled.5

               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 trial court for execution of sentence.




      5 While we review the second assignment of error for plain error, we note that this

court would reach the same decision even if we applied a de novo standard of review. See
Arbors E. RE, L.L.C. v. Franklin Cty. Bd. of Revision, 

, citing Akron
Centre Plaza, L.L.C. v. Summit Cty. Bd. of Revision, 

 (“Our review
of a legal issue is de novo, not deferential.”).
      A certified copy of this entry shall constitute the mandate pursuant to Rule 27

of the Rules of Appellate Procedure.



MARY EILEEN KILBANE, PRESIDING JUDGE

LISA B. FORBES, J., and
MARY J. BOYLE, J., CONCUR