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Penalty for Out-of-State Sex Offender's Failure to Register in Ohio Based on 'Substantially Equivalent' Ohio Offense

Supreme Court Clarifies Analysis Courts Must Use When Comparing Statutes

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2011-0212.  State v. Lloyd, Slip Opinion No. 2012-Ohio-2015.
Holmes App. No. 09 CA 12, 2010-Ohio-6562.  Judgment reversed.
O'Connor, C.J., and Pfeifer, Lundberg Stratton, Lanzinger, Cupp, and McGee Brown, JJ., concur.
O'Donnell, J., dissents.
Opinion: http://www.supremecourt.ohio.gov/rod/docs/pdf/0/2012/2012-Ohio-2015.pdf

Video clip View oral argument video of this case.

(May 8, 2012) The Supreme Court of Ohio today explained the analysis that a court must undertake in determining (1) whether an out-of-state conviction is a sexually oriented offense that triggers a duty to register in Ohio and (2) the sanction for failure to register as a sex offender in Ohio based on a duty that arises from an out-of-state conviction. 

Today’s 6-1 decision, authored by Chief Justice Maureen O’Connor, explained that the legislature established that an out-of-state conviction is a sexually oriented offense under Ohio law if it is or was “substantially equivalent” to any of the Ohio offenses listed in R.C. 2950.01(A)(1) through (10).  But the legislature did not explain the analysis that courts must undertake in making the substantial-equivalence determination.   

Chief Justice O’Connor wrote that “in order to determine whether an out-of-state conviction is a sexually oriented offense in Ohio, a court must initially look only to the fact of conviction and the elements of the relevant criminal statutes, without considering the particular facts disclosed by the record of conviction.  If the out-of-state statute defines the offense in such a way that the court cannot discern from a comparison of the statutes whether the offenses are substantially equivalent, a court may go beyond the statutes and rely on a limited portion of the record in a narrow class of cases where the factfinder was required to find all the elements essential to a conviction under the listed Ohio statute.  To do so, courts are permitted to consult a limited range of material contained in the record, including charging documents, plea agreements, transcripts of plea colloquies, presentence reports, findings of fact and conclusions of law from a bench trial, jury instructions and verdict forms, or some comparable part of the record.”  

The court held further that when a person who was convicted of a sexually oriented offense in another state and was required to register with police in that state moves to Ohio, that person is subject to the sex-offender registration requirements applicable to an Ohio offender convicted of the “substantially equivalent” Ohio offense, and is subject to the same penalties for failure to register in Ohio as an Ohio offender who committed the equivalent Ohio offense.

While it approved rulings by the Fifth District Court of Appeals that a former offender’s 1995 conviction for aggravated sexual assault in Texas was substantially equivalent to an Ohio conviction for rape, and that an Ohio registration violation by that offender would therefore be punishable as a first-degree felony, the court found that it must vacate the defendant’s Ohio registration law convictions on other grounds.

The case involved charges filed against Wesley Lloyd for failure to report a change of address to the respective county sheriffs when he moved from Auglaize County, Ohio to Holmes County, Ohio in June 2008.

Lloyd was convicted of aggravated sexual assault in Texas in 1995, and served a seven-year prison sentence there. In the fall of 2005 he moved to Auglaize County, Ohio, and was told by the Auglaize County sheriff that he was required to register in Ohio as a sexually oriented offender. Lloyd registered with the Auglaize County sheriff as instructed in compliance with Ohio’s pre-2008 (Megan’s Law) sex-offender registration statute. In 2008, he received notice that he had been reclassified by the Ohio attorney general as a Tier III sex offender under the newly enacted Ohio Adam Walsh Act, and would thereafter be subject to more stringent registration requirements. Lloyd continued to register as instructed.  He last registered with the Auglaize County sheriff in May 2008.

On June 2, 2008, Lloyd moved to Holmes County, Ohio, and although he telephoned the Auglaize County sheriff’s office to inform it of his move, he did not give the Auglaize County sheriff advance notice of his move and he did not appear in person at the Holmes County sheriff’s office, as required. On June 12, 2008, he was arrested by Holmes County authorities. Lloyd was subsequently charged with three separate violations of Ohio’s sex offender registration statute: (1) failure to register with the Holmes County Sheriff within three days of moving to Holmes County, (2) failure to provide written notice to the Holmes County Sheriff of intent to reside in Holmes County at least 20 days before moving there, and (3) failure to provide written notice to the Auglaize County Sheriff of intent to move to Holmes County at least 20 days before moving.     

Lloyd was convicted on all counts and sentenced to three years’ imprisonment on each count, to be served concurrently. 

On appeal, the Fifth District Court of Appeals vacated Lloyd’s conviction on the charge of failure to provide 20 days’ advance notice to the Holmes County sheriff.  It reasoned that pursuant to the Supreme Court of Ohio’s June 2010 decision in State v. Bodyke, Lloyd was required to register in accordance with Megan’s Law, not the Adam Walsh Act, and the duty to give advance notice to the sheriff in the county to which one moves arises only under the Adam Walsh Act. The court of appeals affirmed the remaining two convictions.

In its decision, the Fifth District rejected Lloyd’s argument that his convictions violated due process because he was not required to register as a sex offender in Ohio. The court of appeals also rejected Lloyd’s argument that, if anything, aggravated sexual assault as defined in Texas constitutes sexual battery, a third-degree felony, if committed in Ohio. The appellate court concluded that the Texas offense of aggravated sexual assault is substantially equivalent to rape, a first degree felony in Ohio, and therefore Lloyd was subject to registration and to the penalties for a first-degree felony for Ohio registration law violations.

Lloyd sought and was granted Supreme Court review of the Fifth District’s rulings.

Writing for the majority in today’s decision, Chief Justice O’Connor approved the Fifth District’s conclusion that Lloyd’s Texas conviction for aggravated sexual assault was substantially equivalent to a conviction for rape in Ohio.  In doing so, the Chief Justice explained that, because the Texas aggravated sexual assault statute differed from Ohio’s rape statute, it was proper to consider the indictment, jury instructions, and judgment entry from the Texas case. A review of those documents permitted the court to conclude that Lloyd was convicted in Texas of an offense that is substantially equivalent to rape in Ohio, a sexually oriented offense. Because rape is a first-degree felony in Ohio, the court also agreed that a violation of Lloyd’s Ohio registration requirements would be punishable as a first-degree felony. 

The Chief Justice wrote, however, that the Supreme Court found it necessary to vacate Lloyd’s Ohio registration law convictions because the trial court committed plain error in convicting him despite the state’s failure to produce any evidence at trial to prove an essential element of those crimes: i.e., that Lloyd had been required to register as a sex offender with the state of Texas as a result of the aggravated sexual assault conviction at the time he moved to Ohio.

Citing the plain language of Ohio’s registration law for out-of-state offenders, R.C. 2950.04(A)(4),
Chief Justice O’Connor wrote: “(T)he General Assembly imposes a duty to register on a person who has been convicted of a sexually oriented offense in another jurisdiction only if, at the time he moves to Ohio, he had a duty to register in the other jurisdiction as a consequence of the conviction.  ... Accordingly, the state not only had the burden to prove that Lloyd’s aggravated sexual assault conviction is a sexually oriented offense under Ohio law, but it was also required to prove that at the time Lloyd moved to Ohio, he was under a duty to register in Texas as a result of the 1995 conviction.  In this regard, the state failed to do what was required of it.”

“In its case-in-chief, the state failed to produce any evidence whatsoever that at the time Lloyd moved to Ohio, he was under a duty to register in Texas as a result of the conviction in that state.  The state failed to produce any evidence that Lloyd registered as a sex offender in Texas or that he had been given notice by any Texas authority that he was under a duty to register in Texas. It failed to produce any judgment entry that reflected that Lloyd had been adjudicated a sex offender in Texas. And it failed to call any witness to testify as to how Lloyd’s sex-offender status was established in Ohio. It failed to make any legal argument about the consequences of Lloyd’s aggravated-sexual-assault conviction in Texas. It failed in any way to establish Texas’s sex-offender registration law or its effect, if any, on Lloyd.”

With regard to trial testimony by Lloyd himself that was cited by the Fifth District as sufficient to prove a Texas registration requirement, and referenced in the dissent from today’s decision, the Chief Justice wrote: “Although Lloyd discussed obtaining a form, he did not explain what the form was or where he got it. He testified as to when he got it − that is, before he left Texas. But he did not testify that he obtained it from Texas authorities.  His testimony does not confirm that the form was in any way related to the aggravated sexual assault conviction. Moreover, Lloyd testified that there was some kind of confusion when Auglaize County determined his sex-offender status.”

“In an abundance of caution, Lloyd may very well have notified Ohio authorities of his Texas conviction despite not having a duty to register in Texas. The state did not take the opportunity − even on cross-examination − to develop this issue. The dissent quotes one word, ‘yes,’ from Lloyd’s testimony out of context and would hold that it makes the state’s case. Lloyd’s testimony, the only evidence on this issue, was that the Auglaize County Sheriff was confused about whether or how to classify Lloyd. The courts cannot make inference upon inference. ... The dissent also seeks to relieve the state of its burden to prove that Lloyd had a duty to register merely because Lloyd registered as instructed.  Fundamentally, the dissent assumes that the Auglaize County Sheriff’s determination of Lloyd’s sex offender status was legally and factually correct.  That assumption is unreasonable, especially on this record. The irregularities in the Auglaize County Sheriff’s employees’ handling of Lloyd’s registration are well-documented.”

Chief Justice O’Connor’s opinion was joined by Justices Paul E. Pfeifer, Evelyn Lundberg Stratton, Judith Ann Lanzinger, Robert R. Cupp and Yvette McGee Brown.

In his dissenting opinion, Justice Terrence O’Donnell wrote: “The issue accepted for review in this case concerns whether the Texas offense of aggravated sexual assault is substantially equivalent to the crime of rape as defined in Ohio. I concur with the majority’s determination that these offenses are equivalent. This court did not accept Lloyd’s fourth proposition of law that ‘[t]he State failed to prove that Mr. Lloyd had a duty to register under Megan's Law;’ thus, any challenge to the sufficiency of the evidence supporting his convictions is not properly before the court.”

“On direct examination, Lloyd admitted he had a duty to register in Texas and that that duty triggered a duty to register in Ohio when he moved to this state. When asked by his attorney, ‘did you go through certain procedures to establish your duty to register before you left Texas?’ Lloyd answered, ‘Yes.’  Moreover, he testified that he had been classified as a sexually oriented offender on moving to this state, which meant he had a duty to register once a year for ten years. Thus, Lloyd’s own admissions demonstrate his knowledge of his duty to register as a sex offender in Ohio.”

Sean M. Warner, 330.674.4841, for the state and Holmes County prosecutor's office.

Stephen P. Hardwick, 614.466.5394, for Wesley Lloyd.