[Cite as State v. Starks, 2017-Ohio-40.]




                             IN THE COURT OF APPEALS OF OHIO
                                 SIXTH APPELLATE DISTRICT
                                      LUCAS COUNTY


State of Ohio                                      Court of Appeals No. L-16-1013

        Appellee                                   Trial Court No. CR0201402859

v.

Dante Starks                                       DECISION AND JUDGMENT

        Appellant                                  Decided: January 6, 2017

                                           *****

        Julia R. Bates, Lucas County Prosecuting Attorney, and
        Claudia A. Ford, Assistant Prosecuting Attorney, for appellee.

        Mollie B. Hojnicki-Mathieson, for appellant.

                                           *****

        YARBROUGH, J.

        {¶ 1} Appellant, Dante Starks, appeals the judgment of the Lucas County Court of

Common Pleas, convicting him of one count of rape in violation of R.C. 2907.02(A)(2)

and (B), a felony of the first degree. Specifically, appellant appeals the trial court’s

determination that he is subject to community notification as a Tier III sex offender. For

the reasons that follow, we affirm.
                         I. Facts and Procedural Background

       {¶ 2} On December 7, 2015, appellant entered an Alford plea of guilty to one count

of rape in case No. CR0201402859. The facts as presented by the prosecutor indicate that

a week before Thanksgiving in 2013, appellant began touching his 12-year-old daughter,

pulled down her pants, and inserted his penis into her genitalia. The daughter disclosed

the abuse and was taken to a hospital where a rape kit was performed. The prosecutor

stated that the testimony would have revealed that a partial y-chromosome DNA profile

from the child’s vaginal swab would have indicated that it matched appellant. Notably, at

the same hearing, appellant also entered an Alford plea in case No. CR0201502384 to one

count of gross sexual imposition based on having sexual contact with a different daughter

in 2011, when she was nine years old. Appellant did not appeal his conviction in case No.

CR0201502384, and it is not part of this appeal.

       {¶ 3} The matter was continued for sentencing on January 14, 2016. At the

sentencing hearing, appellant moved to be excluded from the community notification

requirements applicable to Tier III sex offenders under R.C. 2950.11(F)(1). The trial

court held a hearing on appellant’s motion, and found that appellant was not entitled to be

excluded. In particular, the court expressed concern that appellant committed a separate,

unrelated sexual offense to which he pleaded guilty in case No. CR0201502384. In

addition, the court expressed concern that the victim was only 12 years old, which the

court found was extremely youthful. Finally, the court noted the father-daughter

relationship between appellant and the victim.




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          {¶ 4} Thereafter, the trial court found that appellant was a Tier III sex offender

subject to community notification. The court further sentenced appellant to four years in

prison.

                                    II. Assignment of Error

          {¶ 5} Appellant has timely appealed his conviction, and now asserts one

assignment of error for our review:

                 I. The trial court erred in ordering that appellant be subject to

          community notification requirements pursuant to R.C. 2950.11(F).

                                          III. Analysis

          {¶ 6} We begin our analysis by noting that the parties do not dispute that appellant

is required by statute to be designated a Tier III sexual offender. Further, the parties do

not dispute that as a Tier III offender, appellant is subject to the community notification

provisions detailed in R.C. 2950.11(A), unless the exception in R.C. 2950.11(F)(2)

applies. Thus, the sole issue on appeal is whether the trial court abused its discretion in

determining that appellant did not meet the exception in R.C. 2950.11(F)(2). See State v.

McConville, 124 Ohio St.3d 556, 2010-Ohio-958, 925 N.E.2d 133, ¶ 12 (“The revisions

to R.C. 2950.11(F) made through Senate Bill 10 specifically refer to and incorporate the

former community-notification provisions. By so doing, the legislature expressed its will

to continue the policy of providing discretion to the sentencing judge in these

circumstances, albeit with additional guidance in the form of the factors now contained at

R.C. 2950.11(F)(2)(a) through (k).”). An abuse of discretion connotes that the trial




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court’s attitude is unreasonable, arbitrary, or unconscionable. Blakemore v. Blakemore, 5

Ohio St.3d 217, 219, 450 N.E.2d 1140 (1983).

      {¶ 7} R.C. 2950.11(F)(2) provides:

             The notification provisions of this section do not apply to a person

      described in division (F)(1)(a), (b), or (c) of this section if a court finds at a

      hearing after considering the factors described in this division that the

      person would not be subject to the notification provisions of this section

      that were in the version of this section that existed immediately prior to

      January 1, 2008. In making the determination of whether a person would

      have been subject to the notification provisions under prior law as

      described in this division, the court shall consider the following factors:

             (a) The offender’s or delinquent child’s age;

             (b) The offender’s or delinquent child’s prior criminal or

      delinquency record regarding all offenses, including, but not limited to, all

      sexual offenses;

             (c) The age of the victim of the sexually oriented offense for which

      sentence is to be imposed or the order of disposition is to be made;

             (d) Whether the sexually oriented offense for which sentence is to be

      imposed or the order of disposition is to be made involved multiple victims;




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            (e) Whether the offender or delinquent child used drugs or alcohol to

     impair the victim of the sexually oriented offense or to prevent the victim

     from resisting;

            (f) If the offender or delinquent child previously has been convicted

     of or pleaded guilty to * * * a criminal offense, whether the offender or

     delinquent child completed any sentence or dispositional order imposed for

     the prior offense or act and, if the prior offense or act was a sex offense or a

     sexually oriented offense, whether the offender or delinquent child

     participated in available programs for sexual offenders;

            (g) Any mental illness or mental disability of the offender or

     delinquent child;

            (h) The nature of the offender’s or delinquent child’s sexual conduct,

     sexual contact, or interaction in a sexual context with the victim of the

     sexually oriented offense and whether the sexual conduct, sexual contact, or

     interaction in a sexual context was part of a demonstrated pattern of abuse;

            (i) Whether the offender or delinquent child, during the commission

     of the sexually oriented offense for which sentence is to be imposed or the

     order of disposition is to be made, displayed cruelty or made one or more

     threats of cruelty;

            (j) Whether the offender or delinquent child would have been a

     habitual sex offender or a habitual child victim offender under the




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       definitions of those terms set forth in section 2950.01 of the Revised Code

       as that section existed prior to January 1, 2008;

              (k) Any additional behavioral characteristics that contribute to the

       offender’s or delinquent child’s conduct.

       {¶ 8} Here, appellant argues that the factors support finding that he is excluded

from the community notification provision. Appellant cites the fact that he was 36 years

old at the time of sentencing, and the victim was 12 years old at the time of the offense.

He also notes that he has a limited criminal history, consisting only of 12 misdemeanors,

no prior sexual offenses, and no offenses as a juvenile. In addition, the instant case

involved only one victim, no drugs or alcohol were used in the commission of the

offense, and there is no evidence that he demonstrated a pattern of abuse, displayed

cruelty, or made any threats of cruelty. Finally, appellant notes that while he has not

been diagnosed with a mental illness, he does suffer from cognitive limitations.

       {¶ 9} Appellant contends that the trial court ignored these factors, and instead

made its decision based upon something outside of R.C. 2950.11(F)(2). Specifically,

appellant points to the court’s statement:

              I cannot ignore the relationship between the defendant and the

       victim. Father and daughter, not a specific factor under 2950.11, so I’m

       creating an appellate issue, but I cannot think more that (sic) evidence and

       this consideration.




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              Not to be too blunt, but if a person can do this to their own blood,

       that, I believe, is a person who the community should be notified about so

       they can make the appropriate -- take the appropriate precautions.

       {¶ 10} However, contrary to appellant’s argument, the trial court did not base its

decision solely on the father-daughter relationship. Rather, the court expressly stated that

it considered the factors, the arguments of counsel, the presentence report, and other

evidence. As a particular area of concern, the trial court noted the young age of the child.

Appellant asserts that the fact that the victim was 12 years old makes being subject to

community notification less appropriate, but we cannot say that in reaching the opposite

conclusion that the trial court abused its discretion. In addition to the age of the victim,

the trial court indicated concern regarding the other sexual offense to which appellant

pleaded guilty. Notably, the other sexual offense occurred prior to the present offense,

and we do not find that the court abused its discretion in considering it. Finally, as to the

concern regarding the father-daughter relationship, we find that the trial court did not err

in considering it as the circumstances of their relationship falls within the nature of

appellant’s sexual conduct with the victim. Therefore, we hold that the trial court did not

abuse its discretion in finding that the exception in R.C. 2950.11(F)(2) did not apply to

appellant.

       {¶ 11} Accordingly, appellant’s assignment of error is not well-taken.




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                                     IV. Conclusion

       {¶ 12} For the foregoing reasons, the judgment of the Lucas County Court of

Common Pleas is affirmed. Appellant is ordered to pay the costs of this appeal pursuant

to App.R. 24.


                                                                       Judgment affirmed.




       A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.




Thomas J. Osowik, J.                           _______________________________
                                                           JUDGE
Stephen A. Yarbrough, J.
                                               _______________________________
James D. Jensen, P.J.                                      JUDGE
CONCUR.
                                               _______________________________
                                                           JUDGE




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