[Cite as State v. Aaron, 2012-Ohio-248.]


STATE OF OHIO                     )                 IN THE COURT OF APPEALS
                                  )ss:              NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT                  )

STATE OF OHIO                                       C.A. No.       25900

        Appellant

        v.                                          APPEAL FROM JUDGMENT
                                                    ENTERED IN THE
DARRELL JAMES AARON                                 COURT OF COMMON PLEAS
                                                    COUNTY OF SUMMIT, OHIO
        Appellee                                    CASE No.   CR 09 06 1857

                                 DECISION AND JOURNAL ENTRY

Dated: January 25, 2012



        DICKINSON, Judge.

                                           INTRODUCTION

        {¶1}     Darrell Aaron pleaded guilty to endangering children, and the trial court

sentenced him to three years in prison. The court also found him to be a sexually-oriented

offender under Megan’s Law. In 2008, the State attempted to reclassify Mr. Aaron as a Tier II

sex offender under the Adam Walsh Act. In June 2009, the Grand Jury indicted Mr. Aaron for

failing to verify his current address and failing to provide notice of his change of address under

the Adam Walsh Act. Mr. Aaron pleaded guilty to failure to verify his current address, and the

trial court sentenced him to two years in prison, which it suspended upon the condition that he

complete two years of community control. Five months later, the State charged Mr. Aaron with

violating community control. Before that issue could be determined, Mr. Aaron moved to

withdraw his plea to the failure to verify current address charge, arguing that he had been

improperly reclassified under the Adam Walsh Act. The trial court granted his motion. Mr.
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Aaron then moved to dismiss the indictment, arguing that, because the State was not allowed to

reclassify him under the Adam Walsh Act, he could not be charged under it. The State agreed

that Mr. Aaron could not be charged with violating the Adam Walsh Act, but moved to amend

the indictment under Rule 7(D) of the Ohio Rules of Criminal Procedure to charge Mr. Aaron

with failing to provide notice of his change of address under Megan’s Law. The trial court

denied its motion and dismissed the indictment, determining that “the amendment sought by the

State [is] not perm[itted] in this case.” The State has appealed, arguing that the trial court should

have allowed it to amend the indictment to charge Mr. Aaron with failing to provide notice of his

change of address under Megan’s Law. We reverse because the trial court incorrectly refused to

allow the State to amend the indictment.

                         EFFECT OF IMPROPER RECLASSIFICATION

        {¶2}    In State v. Bodyke, 126 Ohio St. 3d 266, 2010-Ohio-2424, the Ohio Supreme

Court held that defendants who had been classified as sex offenders under former law could not

be reclassified under the Adam Walsh Act. Id. at paragraphs two and three of the syllabus. It

struck the sections of the Ohio Revised Code that instructed the attorney general to reclassify sex

offenders, held “that the reclassifications of sex offenders by the attorney general are invalid, and

reinstate[d] the prior judicial classifications of sex offenders.” Id. at ¶2.

        {¶3}    Mr. Aaron has argued that, even though Bodyke restored his sex offender status

under Megan’s Law, the State could not amend the indictment to charge him with violating his

Megan’s Law notification requirements because those requirements did not exist at the time of

the alleged offense. According to Mr. Aaron, when the General Assembly passed the Adam

Walsh Act, it repealed the notification requirements in Megan’s Law, meaning he was not
                                                 3


subject to any requirements from the date the Adam Walsh Act took effect until the Supreme

Court reinstated his Megan’s Law reporting requirements in Bodyke.

       {¶4}    In State v. Gingell, 128 Ohio St. 3d 444, 2011-Ohio-1481, Ronald Gingell was

convicted of three counts of rape and was classified as a sexually oriented offender under

Megan’s Law. The attorney general reclassified him as a Tier III sexual offender under the

Adam Walsh Act. Six months after the reclassification, Mr. Gingell was indicted for failing to

verify his address and for failing to provide notice of his change of address, as required under the

Adam Walsh Act. He pleaded guilty to failing to verify his address, but appealed, arguing that

the trial court incorrectly determined the level of the offense. While his appeal was pending, the

Ohio Supreme Court decided Bodyke. Applying it to Mr. Gingell’s case, the Supreme Court

determined that Mr. Gingell could not be convicted for violating the Adam Walsh Act’s 90-day

address verification requirement. Id. at ¶8. It noted, however, that Mr. Gingell had “remained

accountable for the yearly reporting requirement under Megan’s Law; whether he met that

requirement is not a part of this case.” Id.

       {¶5}    The Ohio Supreme Court’s statements in Gingell clarify that sexual offenders

who were improperly reclassified under the Adam Walsh Act remained subject to Megan’s

Law’s reporting requirements during the period of their improper reclassification. State v.

Gingell, 128 Ohio St. 3d 444, 2011-Ohio-1481, at ¶8. We, therefore, conclude that the trial court

incorrectly determined that the State could not amend the indictment to charge Mr. Aaron with

an offense under Megan’s Law. See State v. Howard, 2d Dist. No. 24680, 2011-Ohio-5693, at

¶12 (upholding conviction for failure to provide notice of change of address because the

requirement was the same under Megan’s Law and the Adam Walsh Act); State v. Bowling, 1st

Dist. No. C-100323, 2011-Ohio-4946, at ¶23 (concluding that defendant’s failure to notify of
                                                 4


change of address offense was not based on an unconstitutional reclassification because the same

duty applied under Megan’s Law and the Adam Walsh Act); State v. Stoker, 5th Dist. No. 2010-

CA-00331, 2011-Ohio-3934, at ¶23 (concluding that defendant’s reclassification under Adam

Walsh Act had “no bearing on the outcome of his prosecution” for failing to provide notice of his

change of address). The State’s assignment of error is sustained.

                                         CONCLUSION

       {¶6}    The trial court incorrectly determined that the State could not amend the

indictment under Rule 7(D) of the Ohio Rules of Criminal Procedure to charge Mr. Aaron with

failing to provide notice of his change of address under Megan’s Law. The judgment of the

Summit County Common Pleas Court is reversed.

                                                                              Judgment reversed,
                                                                             and cause remanded.




       There were reasonable grounds for this appeal.

       We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy

of this journal entry shall constitute the mandate, pursuant to App.R. 27.

       Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(E). The Clerk of the Court of Appeals is

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.
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      Costs taxed to Appellee.




                                             CLAIR E. DICKINSON
                                             FOR THE COURT



CARR, P. J.
MOORE, J.
CONCUR


APPEARANCES:

SHERRI BEVAN WALSH, Prosecuting Attorney, and RICHARD S. KASAY, Assistant
Prosecuting Attorney, for Appellant.

MARTHA HOM, Attorney at Law, for Appellee.
