[Cite as State v. Knox, 2016-Ohio-5519.]


                 Court of Appeals of Ohio
                                   EIGHTH APPELLATE DISTRICT
                                      COUNTY OF CUYAHOGA


                                  JOURNAL ENTRY AND OPINION
                                     Nos. 103662 and 103664



                                           STATE OF OHIO

                                                      PLAINTIFF-APPELLANT/
                                                      CROSS-APPELLEE

                                                vs.

                                           LARRY D. KNOX

                                                      DEFENDANT-APPELLEE/
                                                      CROSS-APPELLANT




                                            JUDGMENT:
                                             AFFIRMED



                                      Criminal Appeal from the
                               Cuyahoga County Court of Common Pleas
                                     Case No. CR-14-590340-A

        BEFORE: Boyle, J., Keough, P.J., and Stewart, J.

        RELEASED AND JOURNALIZED: August 25, 2016
ATTORNEYS FOR APPELLANT/CROSS-APPELLEE

Timothy J. McGinty
Cuyahoga County Prosecutor
BY: Daniel T. Van
Assistant County Prosecutor
Justice Center, 9th Floor
1200 Ontario Street
Cleveland, Ohio 44113


ATTORNEY FOR APPELLEE/CROSS-APPELLANT

Russell S. Bensing
1360 East 9th Street
Suite 600
Cleveland, Ohio 44114
MARY J. BOYLE, J.:

       {¶1}    In this consolidated appeal, the state of Ohio appeals the trial court’s judgment

granting defendant Larry Knox’s motion to dismiss the indictment.          The state raises one

assignment of error for our review:

       The judge erred in granting [Knox’s] motion to dismiss the indictment.

       {¶2}    Knox also appeals, raising one assignment of error for our review:

       The trial court erred in denying defendant’s motion to dismiss the indictment for
       violation of the defendant’s constitutional right to speedy trial, in derogation of
       defendant’s rights under the Sixth Amendment to the United States Constitution
       and Article I, Section 10 of the Ohio Constitution.

       {¶3}    Finding no merit to the state’s arguments, we affirm the trial court’s dismissal of

the indictment. As a result of our disposition of the state’s appeal, Knox’s arguments have been

rendered moot.

I.   Procedural History and Factual Background

       {¶4}    Knox was indicted in November 2014 for failure to verify his address in violation

of R.C. 2950.06(F), a third-degree felony. The indictment alleged that Knox was required to

verify his residence address on August 14, 2014, based upon a 1999 conviction for gross sexual

imposition.   Knox pleaded not guilty to the indictment.

       {¶5} In June 2015, the trial court granted Knox’s appointed counsel’s motion to withdraw

from the case and appointed new counsel for Knox.

       {¶6} On August 13, 2015, the original judge who was assigned to the case recused

himself due to Knox asserting that the judge was biased against him.    The case was transferred

to a new judge.
        {¶7} On September 21, 2015, Knox signed a waiver of right to counsel, stating that he

was voluntarily waiving his right to counsel.   Knox proceeded to represent himself after the trial

court determined that he was voluntarily, intelligently, and knowingly waiving his right to

counsel.

        {¶8} On September 28, 2015, Knox moved to dismiss his case claiming that his speedy

trial rights were violated.   Knox also moved to dismiss the indictment charging him with failure

to verify his address, arguing that he was not required to register every 90 days as a sexual

predator on August 14, 2014. Knox asserted that he was only required to register once per year

as a sexually oriented offender, which he claimed that he did in June 2014.

        {¶9} The trial court denied Knox’s speedy trial motion, but granted his motion to dismiss

the indictment because it found that Knox was never notified by Lorain County Court of

Common Pleas that it incorrectly labeled him a sexually oriented offender (stating that he must

“continue to periodically register as a Megan’s Law sexually oriented offender”) instead of the

correct classification of sexual predator.

        {¶10} It is from these judgments that Knox and the state appeal.

II.   Knox’s Motion to Dismiss the Indictment

        {¶11} In its sole assignment of error, the state claims that the trial court improperly

dismissed the indictment against Knox because it considered evidence outside of the indictment,

“finding that defendant-appellee was unaware of his sexual predator status and thus could not

have been indicted for violating R.C. 2950.06(F).” The state asserts that a trial court may not

examine the indictment “beyond its four corners” when deciding whether to grant a motion to

dismiss the indictment.
       {¶12} We review a trial court’s decision on a motion to dismiss an indictment pursuant to

a de novo standard of review. State v. Gaines, 193 Ohio App.3d 260, 2011-Ohio-1475, 951

N.E.2d 814, ¶ 14 (12th Dist.). “De novo review requires an independent review of the trial

court’s decision without any deference to the trial court’s determination.” State v. Clay, 2d

Dist. Miami No. 2015-CA-17, 2016-Ohio-424, ¶ 5.

       {¶13} Crim.R. 12(C) provides:

       Pretrial motions. Prior to trial, any party may raise by motion any defense,
       objection, evidentiary issue, or request that is capable of determination without
       the trial of the general issue. The following must be raised before trial:

       (1) Defenses and objections based on defects in the institution of the
       prosecution;

       (2) Defenses and objections based on defects in the indictment, information, or
       complaint (other than failure to show jurisdiction in the court or to charge an
       offense, which objections shall be noticed by the court at any time during the
       pendency of the proceeding);

       (3) Motions to suppress evidence, including but not limited to statements and
       identification testimony, on the ground that it was illegally obtained. Such
       motions shall be filed in the trial court only.

       (4) Requests for discovery under Crim.R. 16;

       (5) Requests for severance of charges or defendants under Crim.R. 14.

       {¶14} The state is not correct that trial courts may never consider evidence outside the

indictment when deciding whether to grant a pretrial motion to dismiss the indictment.       Crim.R.

12(F) expressly states that when deciding pretrial motions, courts may rely “upon briefs,

affidavits, the proffer of testimony and exhibits, a hearing, or other appropriate means.”

       {¶15} If, however, in deciding whether to grant a defendant’s pretrial motion to dismiss

the indictment, a trial court must determine “the general issue” of the case that the state had to

prove at trial, then it may not consider outside evidence. State v. Brady, 119 Ohio St.3d 375,
2008-Ohio-4493, 894 N.E.2d 671, ¶ 18. In Brady, the state contended that the defendant’s

“motion dealt with facts that went beyond the face of the indictment,” which was not permitted

under State v. O’Neal, 114 Ohio App.3d 335, 336, 683 N.E.2d 105 (1996). Brady at ¶ 12, 14.

        {¶16} The Ohio Supreme Court in Brady explained:

                The state cites State v. O’Neal (1996), 114 Ohio App.3d 335, 336, 683
        N.E.2d 105, quoting State v. Patterson (1989), 63 Ohio App.3d 91, 95, 577
        N.E.2d 1165, for the proposition that “[a] motion to dismiss charges in an
        indictment tests the sufficiency of the indictment, without regard to the quantity or
        quality of the evidence that may be produced by either the state or the defendant.”

               We have examined O’Neal and State v. Varner (1991), 81 Ohio App.3d
        85, 610 N.E.2d 476, which dealt with similar claims.

                In O’Neal, the trial court granted the defendant’s pretrial motion to dismiss
        an indictment for possession of cocaine in violation of R.C. 2925.11(A) on the
        ground that the small amount of cocaine found on his person was insufficient as a
        matter of law to sustain the “knowingly” element of the possession charge.
        O’Neal, 114 Ohio App.3d at 336, 683 N.E.2d 105. In reviewing the judgment,
        the appellate court stated: “‘The proper determination [for the trial court to make
        in reviewing the motion to dismiss the indictment] was whether the allegations
        contained in the indictment made out offenses under Ohio criminal law. If they
        did, it was premature to determine, in advance of trial, whether the state could
        satisfy its burden of proof with respect to those charges.’” Id., quoting
        Patterson, 63 Ohio App.3d at 95, 577 N.E.2d 1165. Because O’Neal’s motion
        required consideration of the general issue at trial — whether O’Neal knowingly
        possessed the small amount of cocaine found on his person — the Montgomery
        County Court of Appeals determined that the pretrial dismissal of the indictment
        was improper.

                Similarly, in Varner, the Summit County Court of Appeals considered the
        dismissal of an indictment for failure to appear in violation of a recognizance
        bond. The motion to dismiss required the trial court to examine Varner’s bond
        to determine whether it was a recognizance bond. The appellate court reversed
        the order granting dismissal, holding that “[t]he Ohio Rules of Criminal
        Procedure, * * * do not allow for ‘summary judgment’ on an indictment prior to
        trial.” Varner, 81 Ohio App.3d at 86-87, 610 N.E.2d 4760.

Id. at ¶ 14 - 17.
       {¶17} The Supreme Court determined that O’Neal and Varner were distinguishable from

the facts in Brady “because they involved pretrial motions to dismiss that required consideration

of the general issue for trial.” Id. at ¶ 18. The Supreme Court explained that Brady’s “motion

did not embrace what would be the general issue at trial.” Id. The Supreme Court concluded:

       Because Brady’s pretrial motion to dismiss did not require a determination of the
       general issue for trial, Crim.R. 12(C) allowed the trial court to consider it.
       Moreover, because Crim.R. 12(F) expressly permits a court to consider briefs,
       affidavits, the proffer of testimony, and other exhibits, the trial court could
       properly consider evidence beyond the face of the indictment in ruling on Brady’s
       motion to dismiss.

Id.

       {¶18} At an evidentiary hearing on Knox’s motion to dismiss the indictment, the trial

court determined that Knox had originally been labeled a sexual predator under Megan’s Law by

the Lorain County Court of Common Pleas in 1999. Knox was later reclassified by the attorney

general as a Tier III sex offender under the Adam Walsh Act. But in 2010, the Ohio Supreme

Court determined that it was unconstitutional to reclassify offenders under the Adam Walsh Act

if they had originally been classified under Megan’s Law. See State v. Bodyke, 126 Ohio St.3d

266, 2010-Ohio-2424, 933 N.E.2d 753.

       {¶19} Subsequently, in February 2011, the Lorain County Court of Common Pleas

reinstated Knox’s Megan’s Law classification in light of Bodyke. In doing so, however, the

Lorain County Court of Common Pleas incorrectly issued a judgment stating that Knox was

reinstated to his prior classification of sexually oriented offender (stating that he must “continue

to periodically register as a Megan’s Law sexually oriented offender”), rather than as a sexual

predator (which would require him to register every 90 days). The Lorain County Court of

Common Pleas later (in April 2012) issued a judgment pursuant to Civ.R. 60(B)(1) correcting its
prior mistake and properly classifying Knox as a sexual predator — because that was his original

classification under Megan’s Law.1

        {¶20} After the evidentiary hearing in the present case, the trial court determined that

Knox never received notification of the Lorain County’s judgment correcting its prior mistake

and properly reinstating Knox’s sexual predator classification. This, however, was not the

“general issue for trial,” because at trial the state would have had to prove that Knox was

required to register on a specific date and failed to register on that date. The fact that Knox was

never notified of his correct sex offender status in a separate county did not determine the

“general issue for trial” in this case.

        {¶21} The state contends that at trial, it would have had the burden to prove that Knox “in

fact had notice of his sexual offender classification.” We disagree. R.C. 2950.06(F) provides

in relevant part:

        No person who is required to verify a current residence, school, institution of
        higher education, or place of employment address, as applicable, pursuant to
        divisions (A) to (C) of this section shall fail to verify a current residence, school,
        institution of higher education, or place of employment address, as applicable, in
        accordance with those divisions by the date required for the verification as set
        forth in division (B) of this section[.]

        {¶22} Thus, the state would have had to prove that Knox was required to verify his

current address on a specific date and that he failed to do so. Knox’s knowledge of his sexual

offender status would have had nothing to do with the state’s burden at trial.




1
 The journal entry stated: “Pursuant to Civ.R. 60(B)(1), the court corrects the mistake in the sex offender
reclassification order issued on February 10, 2011 and determines that deft is a sexual predator, pursuant to R.C.
2950.09, et seq.”
       {¶23} Accordingly, we affirm the trial court’s dismissal of the indictment against Knox

based on the unique circumstances of this case.         The state’s sole assignment of error is

overruled.

       {¶24} Further, we find Knox’s argument that his speedy trial rights were violated to be

moot based on our disposition of the state’s assignment of error.

       {¶25} Judgment affirmed.

       It is ordered that appellee recover from appellant the 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.

       A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the

Rules of Appellate Procedure.




MARY J. BOYLE, JUDGE

KATHLEEN ANN KEOUGH, P.J., and
MELODY J. STEWART, J., CONCUR
