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IN THE SUI'REME COURT OF OHIO

S'TA'I•E OF OHI0,

CASE No. ^^ ^v, • ^^ ,^ ^>^. ^ c.an 'y: (.•^l ^ J L ^ kN,• ^''^^ ^

7DPLAINTIFF-APPELLEE,

V.

ADRIAN A. BIZZELL,

DEFENDANT-APPELL.ANT,

ON DISCRETIONARY APPEAL FROM THE

MONTGOMERY COUNTY COURT OF APPEALS,

SECOND APPELLATE DISTREC"I^,

CASE Nos. 25905 AND 25906

MEMORANDUM IN SUPPORT OF JURISDICTION OF

APPELLANT ADRIAN A. BIZZELL

Montgomery County Prosecutor's Office

Michele D. Phipps, 0069829

Assistant Prosecuting Attorney

Office of the Ohio Public Defender

Stephen P. Hardwick, 0062932

Assistant Public Defender

5th Floor, Courts Bldg.

301 W. Third Street

Dayton, Ohio 45402

937-225-5757

937-225-3470 (fax)

Counsel for Appellee, State of Ohio

250 E. Broad Street, Suite 1400

Columbus, Ohio 43215

(614) 466-5394

(614) 752-5167 (fax)

stephen.hardwick@opd.ohio.gov

Counsel for Appellant, Adrian A. Bizzell

A.. . s'r;; ^};^ ^ ^ ^s # ^,

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S EjP R E, ROA E- €1 aWAST 0 F 0'^10

TABLE OF CONTENTS

I'age No.

THIS CASE INVOLVES A SUBSTANTIAL CONSTITUTIONAL QUESTION AND IS

OF PUBLIC ANL? GREAT GENERAL INTEREST ...... ....................................... ......................:1

STATEMENT OF THE CASE AND THE FACTS................................................................ . ......... 4

Case No. 2013-CR-310-A bench trial that required Post-trial briefinkg ..... ......................4Case No. 2013-CR-2387--No contest lJlea. ... ........ ..... ........................................ .5

ARGUMENT .................................

Proposition of Law No. I:

............................ ......... . . .............................................. 6

Failing to properly notify or register as a sex offender is not a strictliability v offense. R.C. 2950.04 ................ ,t;........... , .....,................. .................... .

Ohio's SORN statute implements a federal statute that requires aknowing mens rea . .... .... ..................................................... . ................ ....6

A reckless mental state requirement avoids unfair and absurd resultswhile allowing the prosecution of defendants who flout their duty toregister . ............................... . ....................................................................... .........7

Proposition of Law i eFo. Il:

Trial and appellate counsel are ineffective for failing to raise an issue that

would have led the court to vacate client's convlctlQn . ... ......... ....,..........................8

CONCLUSION .. .. ... ......................................................... ... ..... ...................................8

CERTIFICATE OF SERVICE .. ......... ................................................... ........... ..........9

i

TABLE OF CONTENTS

Page No.

A.PPENDIX.

Final Entry, Montgomery County Court of Appeals Case Nos. 25905 and25906 (February 28, 2014) ............................................................... ......... .. . .... .. ........... A-1

Opinion, Montgomery County Court of Appea1_s Case Nos. 25905 and 25906(February 28, 2014) ..................................................... .......... ............................ A-3

ii

THIS CASE INVOLVES A SUBSTANTIAL CONSTITUTIONAL QUESTION

AND IS OF PUBLIC AND GREAT GENERAL INTEREST

`I'his case raises an issue essential to the fair and efficient enforcement of Ohio's

Sex Offender Registration and Notification statutes ("SORN")-ca.n a sex offender be

convicted of violating the law by an innocent or accidental mistake? Or, under R.C.

2901.21(B), must the State prove that the defendant recklessly disregarded his or her

registration duties?

Ohio's SORN laws are far reaching and complex -this Court has issued

numerous opinions that resolved disputes concerning the application of the Adam

Walsh Act ("AWA"). See, e.g., State v. Howard, 134 Ohio St.3d 467, 2012-Ohio-5738, 983

N.E.2d 341 (whether old or new law penalties apply); State v. Brunning, 134 Ohio St.3d

438, 2012-Ohzo-5752, 9831\T.E.2d 316 (registration duties of Megan's law offenders under

the AWA); State ex rel. Jean-Baptiste v. Kirsch, 134 Ohio St.3d 421, 2012-Ohio-5697, 983

N.E.2d 302 (power of juvenile courts to impose registraEion requirements on juvenile

offenders who have turned 21); In re Britce S., 134 Ohio St.3d 477, 2012-Ohio-5696, 983

N.E.2d 350 (application of AWA to crimes committed between July 1, 2007 and January

1, 2008 ); State v. Lloyd, 132 Ohio St.3d 135, 2012-Ohio-2015, 970 N.E.2d 870 (application

of AWA to out-of-state conviction); .In Ye C.P.,131 Ohio St.3d 513, 2012-Ohio-1446, 967

N.E.2d 729 (application of life-long registration requirements for juvenile offenses); State

v. Palrner,131 Ohio St.3d 278, 2012-Ohio-580, 964 N.E.2d 406 (procedure for challenging

AWA enforcement); State v. Williarris,129 Ohio St.3d 344, 2011-Ohio-3374, 952 N.E.2d

1108 (AWA is punitive and cannot be applied retroactively); State v. BUClyke,126 Ohio

St.3d 266, 2010-Ohio-2424, 933 N.E.2d 753 (AWA cannot nullify judicially determined

Megan's Law classifications); State v.1VlcConville,124 Ohio St.3d 556, 2010-Ohio-95€3, 925

N.E.2d 133 (effective date of AWA community notification provisions).

Put simply, Ohio's SORN laws are complex and difficult to understand-even

for j-Lidges and lawyers. Imposing strict liability can lead to absurd results. For example,

if the statutes impose strict liability, a defendant would be guilty of a first-degree-felony

merely for miscalculating a deadline and notifying the sheriff nineteen days before a

move instead of the required twenty. R.C. 2950.04(G); 2950.99(A)(1)(a)(i). And while the

State might view such defenses with suspicion, juries and trial judges are perfectly

capable of separating valid from invalid claims.

In Adrian Bizzell's case, the trial judge found the SORN rules so complex that,

after trial, he required the parties to submit post-trial briefs on whether Adrian Biz.zell

remained under a duty to register. If a common pleas court judge requires post-trial

briefing simply to verify a duty to register, it's unreasonable to hold a homeless

defendant strictly liable for the same offense.

This case is a good vehicle to resolve the issue because it involves a consolidated

appeal from two trial court cases-one in which Adrian pleaded no contest and the

other in which he tried the case to the bench. As a result, this Court can give lower

2

courts guidance on how to apply the recklessness requirement to the bare-boned facts

of an indictment, as well as to the more complex facts elicited in a trial.

Holding a criminal defendant strictly liable for violating a statute that has

befuddled lawyers and judges is unfair. As a result, Ohio's SORN laws are exactly the

kind of statutes to which the R.C. 2901.21(B) recklessness requirement attaches.

T'his Court should acceRt this case and vacate Adrian Bizzell's convictions.

3

STATEMENT OF THE CASE AND THE FACTS

'This appeal involves two trial court cases that were consolidated into a single

appeal.

Case No. 2013-CR-310-A bench trial that YeqiiiYecl post-trial briefing.

On December 12, 2012, Adrian Bizzell's cousin, Georgia Houston, had a stroke.

Adrian came to her Dayton home. He and his girlfriend, Heather Perkins, cared for Ms.

Houston and her daughter. By January 3, 2013, Ms. Houston was upset that Adrian and

Heather weren't contributing to the household finances, and an argument ensured.

Adrian and 1-leather left the house, but their two cats and many of their belongs

remained. "I'he next day, Adrian registered as a sex offender at Ms. Houston's Dayton

address, but he added one digit to the address-instead of 72 W. Norman Ave., he

wrote, 372 W. Norman Ave.

Adrian and Heather drifted from place to place every few days for most of

January, until January 26, 2013, when they stayed four days at the same place. Adrian

was arrested on January 30, 2013. He was charged with failing to register the last

address. After a bench trial, the trial judge was unsure as to his duty to register, so he

ordered the parties to submit post-trial briefs, after which the trial court found Adrian

guilty. The trial court sentenced him to twelve months in prison, to be served

concurrently with the sentence in Case No. 2013-CR-2387.

4

Case No. 2013-C.R-2387-No contest plea.

Because Adrian pleaded no contest, the facts as alleged in the indictment are

accepted as true. The indictment did not allege that he acted recklessly. Instead, it

alleged only that he failed to give twenty-days advance notice before changing his

address:

Adrian A. Bizzell, between the dates of February 13, 2013 through August

28, 2013 in the County of Montgomery, aforesaid, and State of Ohio, being

required to register pursuant to Section 2950.04 or Section 2950.041 of the

Revised Code, when the most serious sexually oriented offense or child-

victim oriented offense that was the basis of the requirement to register

and notify was a felony of the third degree if committed by an adult or a

comparable category of offense committed in another jurisdiction to wit:

gross sexual imposition (2 counts) on October 4, 1999, in the case of the

State of Ohio versus Adrian A. Bizzell, being Case Number 1998 CR 02537,

in the Montgomery County Common Pleas Court, a felony of the third

degree, and said defendant also having previously pleaded guilty to or

been convicted of failure to notify on. October 11, 2005, in the case of the

State of Ohio versus Adrian Bizzell, being Case Number 2005 CR 02523, in

the Montgomery County Common Pleas Court, a felony of the third

degree; at least twenty (20) days prior to changing the offender's residence

address or address of the offender's school or institution of higher

education Montgomery County, Ohio, the Sheriff with whom the offender

most recently registered the address under Section 2950.04, 2950.041, or

2950.05(B); contrary to the form of the statute (in violation of Sections

2950.05(A) and (F)(1) of the Ohio Revised Code) in such case made and

provided, and against the peace and dignity of the State of Ohio.

(Emphasis deleted.)

The trial court convicted him, and sentenced him to twelve months in prison, to

be served concurrently with the sentence in Case No. 2013-CR-310.

5

Mr. Bizzell appealed, arguing that the State failed to notify him of the

registration requirements, and raising an impossibility defense. The court of appeals

found tha.t he had proven neither, and affirmed. Apx. A-1.

ARGUMENT

Proposition of Law No. I:

Failing to properly notify or register as a sex offender is not a strictliability offense. R.C. 2950.04.

The State must prove that a defendant recklessly failed to provide notice to law

enforcement before obtaining a conviction for failure to timely register as a sex offender

or to give advance notice of a move. It's true that this Court rejected a claim that

recklessness was an element of failing to notify under Megan's Law. State v. Cook, 83

Ohio St.3d 404, 420, 700 N.E.2d 570,1998-Ohio-291. But in State v. Jolinsoyt,128 Ohio

St.3d 107, 2010-Ohio-C301, this Court ruled that the General Assembly intended for R.C.

2901.21(B) to apply to statutes that contain no mental state. And if R.C. 2901.21(B)

applies to any statute, it should apply to the sex offender registration and notification

statute, which is so complicated it has confounded defendants, lawyers, and judges

since its enactment.

Ohio's SORN statute implements a federal statacte that requires aknowing mens rea.

Applying JolPnson, recklessness is an element of the offense of failure to properly

register under R.C. 2950.04 and 2901.21(B). Ohio Revised Code Section 2950.04 contains

no mental state, and the federal law that prompted 2007 Am.Sub.S.B. No. 10 requires

6

the government to prove a knowing violation of registration requirements.1$ U.S.C. §

2250(a)(3) ("Whoeve.r ... knowingly fails to register or update a registration as required

by the Sex Offender Registration and Notification Act[] shall be fined under this title or

imprisoned not more than 10 years, or both")

The State cannot fairly argue that the failure to register statute "plainly indicates

a purpose to impose strict criminal liability," because the statute's purpose was to

implement the federal Adam Walsh Act, and that act requires the government to prove

a "knowing" violation. Compare id. with State v, Bodyke, 126 Ohio St.3d 266, 2010-Ohio-

2424 at T18-20 (Ohio adopted SB10 in response to federal legislation). Further, the Ohio

General Assembly did not have to expressly include a mental state because R.C.

2901.21(B) imposes a reckless mens rea in the absence of plain.langu:age to the contrary.

A reckdess mental state reqitirement avoids aeytf'air and absurd resatltszvhile allowing the prosecution of defendants zvho flout their duty toregister.

The severity of the possible penalties militates against making this offense strict

liability. Mr. Bizzoll was convicted of a third-degree felony that carried a maximum

sentence of three years in prison. R.C. 2929.14. But for defendants who committed

certain underlying offenses, violating R.C. 2950.04 is a first-degree felony with a

presumption of at least three years in prison and a mandatory five years of post-release

control. R.C. 2950.99(A)(1)(a)(i). If this is a strict liability offense, the State can convict a

defendant who acted on incorrect orders from law enforcement. See, e.g., Stcxte v. Lloyd,

132 Ohio St.3d 135, 2012-Ohio-2015, 970 N.E.2d 870 (conviction vacated on other

grounds). And under strict liability, a defendant who reports a move nineteen days in

7

advance instead of twenty, or who reports to a sheriff four days after a move instead of

three, can face a first-degree felony conviction with prison presumed for a small

deadline miscalculation-a mistake that is all too cornrnon even antong attorneys fol.lozc?ing

comparatively nioYe simple rules.

Here, neither Adrian's indictment in one case nor his bench trial in the other

included evidence that he acted recklessly. This Court should accept this case and

vacate his conviction.

Proposition of Law No. II:

Trial and appellate counsel are ineffective for failing to raise an issuethat would have led the court to vacate client's conviction.

T'rial and appellate counsel did not raise the argument contained in Proposition

of Law No. I. For the r.easons explained in that proposition, if counsel ha.d raised the

issue, there would be a reasonable probability that the result of the case would have

been different. There is no valid strategic reason not to raise the issue, so counsel's

deficient performance prejudiced Adrian. Roe v. Flores-Ortega, 528 U.S. 470, 120

S.Ct.1029, 145 L.Ed. 2d 985 (2000).

CONCLUSION

This Court should accept this appeal. and vacate Adrian Bizzell's convictions.

Respectfully submitted,

Office of the hio Public Defender

,t'-Stephen P. Hardwic 32)Assistant Public Defender

8

250 E. Broad Street, Suite 1400Columbus, Ohio 43215(614) 466-5394(614) 752-5167 (fax)stephen.hardwick@opd.ohio.gov

Counsel for Appellant, Adrian A. Bizzell

CERTIFICATE OF SERVICE

I hereby certify that a true copy of the foregoing was forwarded by email to

Assistant Prosecuting Attor.ney :Michele D. Phipps, phippsm@mcohio.org, on this 11th

of April, 2014.

Stephen P. I Iardwick (0062932)Assistant Public Defender

Counsel for Appellant, Adrian. A. Bizzell

#416159

9

IN THE SUPREME COURT OF OHTO

STATE OF OH[O,

CASE No.

PLAINTIFF-APPELLEE,

ON DISCRETIONARY APPEAL FROM T'HE

V. MONTGOMERY COUNTY COURT OF APPEALS,

SECOND APPELLATE DISTRICT,

AI?RIrkN A. BIZZELL, ; CASE Nos. 25905 AND 25906

DEFENDANT-APPELLANT.

APPENDIx To

MEMORANDUM IN SUPPORT OF JURISDICTION OF

APPELLANT' ADRIAN A. BIZZELL

•-r • _''^;^ ; . . • '

ta`; 14 1

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IN THE COURT OF AP'REALS OF OHIOSECOND APPELLATE DISTRICT

MONTGOMERY •C(3UNTY

STATE OF OHIO

PCaintiff-Appeilee

V.

ADRIAN A. BIZZELL

Defend a nt-Ap pel 6ani t

Appetlata Case Nos. 2590525906

Trial Court Case Nos. 13-CR-31013-CR-2387

(Criminal Appeal fromCommon Pleas Court)

FINAL ENTRY

Pursuant to the opinion of this caurt rendered on the 28-th day

of Fe'rf'ry , 2014, the judgment of the triai court is Affirmed.

Costs to be paid as stated in App.R. 24.

Pursuant to Ohio App.R. 30(A), it is hereby qrderod that the clerk of the Montgomery

County Court of Appeals shall immediately serve notice otthis judgment upon all parties and

make a note in the docket of the mailing.

MIKE FAIN, Judge

THE COURT OF APPEALS OF OHIOSECOND APPELLATE DISTRICT

A - 1

♦ ^°6.

MARY E:DONOVAN, Judge

JEFFREY M. WELBAUM, Judge

Copies mai#ed to:

Mathias H. Heck, Jr.Michele D. PhippsMontgomery County Prosecutor's OfficeP.O. Box 972 -Dayton, OH 45422

Kirsten KnightP.O. Box 137Germantown, OH 45327

Han.. Gregory P. SingerMontgomery County Common Pleas Court

° 41 N. Perry StreetDayton, OH 45422

_2.

THE COURT t'iF APPEALS OF OHIOSECOND APPELLATE DFSTRICT

^ - ^

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-^

STATE OF OHIO

V.

Plaintiff-Appellee

IN THE COURT OF APPEALS'flF OHIOSECOND APPELLATE DISTRICT

MONTGOMERY COUNTY

ADRIAN A. BIZZELL

Defenda nt-Appel la nt

Appellate Case Nos. 2590525906

Trial Court Case Nos, 13-CR-31013-CR-2387

(Criminal Appaal fromCommon Pleas Court)

0 P I-N 10 N

Rendered on the 28th day of February, 2014.

MATHIAS H. HECK, JR., by MICHELE D. PHIPPS, Atty. Reg. #0060829, MontgomeryCounty 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 45327Attarney for [7efendant-Appelianf

FA3N, a

{¶ 1} Defendant-appellant Adrian A. BizzeH appeals from his convictions and

sentences fortwo counts of Failure to Notify, in violation of R.C..2950,05(A)(F')(1), felonies

of the third degree. 8izzeti contends that his convictions are void, and must be vacated,

THE COURT OF APPEALS OF OHIOSECOND APPELL,ATE DISTRICT'

A - 3

^ IF

_2_

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.

{7 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 A€firmed.

I. Bizzell Is Adjudicated a Sexually Oriented Offender and Fails to Notify

the Montgomery County Sheriffs Office of a Change in.Address

{l 3) In September 1999, Adrian A. Bizzell was convicted of two counts of Gross

Sexual irnposition. 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 Cabrtfonds defendant to be a sexually oriented offender

by Ohio Revised Code 2950.01(D) and;

11 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 shal( provide notice to the defendant at least

ten (10) days before the defendant is released.

(14) In October 2005, Bizzeit was convicted of one count of Failure to Notify and

sentenced to two years in prison in Montgomery County Case No. 2005 CR 2523.

THE cC9CJR•.C oF APPEALS OF OHIOSECONl7 APPELLATE DISTItiCT

A ` 4

i ,.-3-

(1 5) On January 4, 2013, Bizzell signed a Notice of Registration with the

Montgomery County Sheriffs 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.

{^( 6} 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, Bizzelf

was found guilty of one count of Failure to Notify.

{¶ 7) 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.

(181 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.

11. Bizzell's Convictions Are Not !/old, and Bizzell

Failed to Establish the Affirmative Defense of tmpossibiCit-y,

(19) Bizzell's sole assignment of error states:

THE COURT OF APPEALS OF OHIOSECOND APPELLATE DISTRICT

A--5

t

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

11 TO THE DEFENDANT PURSUANT TO R.C. 2950.03, CONTRAR`(TOTHE

GUARANTEES OF DUE PROCESS OF LAW.

{l 10} 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.

{¶ 11} The Eighth District Court afAppeals rejected a similar contention in State v.

Freeman, 8th Dist. Cuyahoga hln. 86740, 2006-Ohia-2583. The court held, at% 14:

8ath 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 repvrt: As the Ohio

Supreme Court made clear in State v. Hayden, 96 Ohio St.3d 211,

2002-Ohia-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 county in which he

resides as prescribed by R.C. 2950.04(A)(2)." Id. at ¶ 15. (Emphasis added}.

THE COURT OF APPEALS OF OHIC) ISECOND APPELLATE T2IS'1CRTCT

A - 6

-5-

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 ®hio 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.

(1121 We agree with the analysis in Freerrran_ 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.

(113) 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 riot agree.

{l 14} 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

(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

THE COURT OF APPEALS OF OHloSECOND APPELLATE DISTRICT

A ° 7

_{,_

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 iii division (A) of this section as soon as possible, but hot

later than the end of the first business day, after Eearning of the address -

change by doing either of the fallowing:

(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.

{l 15} The defense of impossibility based solely on homelessness has been

rejected by a number ofC3hio's appellate districts. In State v. Watkins, 6th Dist. Lucas No.

L-11-1085, 2013-C3hio-2030,T 32, the Sixth District Court of Appeals explained:

H The provisions of R.C. 2950.05 * * * ctearfy provide that the

11 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.G. 2950.05(1)) states that "change of

address" includes "any circumstance in which the old address for the person

11 in question no longer is accurate, regardless of whether the person in

question has a new address.'•' 'To establish the affirmative defense of

impossibility, the offender must show that on the date when he was required

THE Cbi3RT OF APPEALS OF OHIOSECOiND APPELLATE DISTRICT

^, - ^

s7-

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 frrst 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.G. 2950.05. Law.ry, at^ 19;.

11 State v. Ohmer, 162 Ohio,App.3d 150; 2005-C?hio-3487, 832 N.E. 2d 1243,

¶2Ct-21 {1st Dist.).

(116) We agree with the reasoning expressed in Watkins. The fact that Bizze(l may

have been homeless does not, in and of itself, establish that it was impossible for him to

comply with the registration reauiremettts. Furthermore, the State provided testimony that

Bizzell had acknowledged that he had provided an incorrect address when he first

registered at the Montgomery County Sheriffs 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,

{% 17) Bizzell's sole assignment of error is overruled.

i)!. Conclusion

18} Bi;zzell's sole assignment of error having,been overruled, the gudgment of the- m_ f ....^...

trial court is Affirmed.

THE COURT OF APPEALS OF OHIOSECOND APPELLATE DISTRICT

A - 9

_g.

dONt1VAh1 and 1tVELBAUM, JJ., concur.

Copies mailed to;

Mathias H. HeckIViichefe D. PhippsKirsten KnightHon. Gregory F. Singer

THE COURT OF APPEALS OF QI-iIoSEC€3iNL7 APPELLATE DISTRICf'

A -10

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