[Cite as State v. Fluharty, 2011-Ohio-4074.]


                                        COURT OF APPEALS
                                       STARK COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT


                                               :   JUDGES:
STATE OF OHIO                                  :   W. Scott Gwin, P.J.
                                               :   William B. Hoffman, J.
                         Plaintiff-Appellant   :   Julie A. Edwards, J.
                                               :
-vs-                                           :   Case No. 2010CA00242
                                               :
                                               :
MARION FLUHARTY                                :   OPINION

                      Defendant-Appellee




CHARACTER OF PROCEEDING:                            Criminal Appeal from Stark County
                                                    Court of Common Pleas Case No.
                                                    2010-CR-0220

JUDGMENT:                                           Reversed and Remanded

DATE OF JUDGMENT ENTRY:                             August 8, 2011

APPEARANCES:

For Plaintiff-Appellant                             For Defendant-Appellee

JOHN D. FERRERO                                     TAMMI JOHNSON
Prosecuting Attorney                                Stark County Public Defender’s Office
Stark County, Ohio                                  200 W. Tuscarawas Street, Suite 200
                                                    Canton, Ohio 44702
BY: KATHLEEN O. TATARSKY
    RENEE M. WATSON
    Assistant Prosecuting Attorney’s
    110 Central Plaza South, Ste. 510
    Appellate Section
    Canton, Ohio 44702-1413
[Cite as State v. Fluharty, 2011-Ohio-4074.]


Edwards, J.

        {¶1}     Plaintiff-appellant, State of Ohio, appeals from the August 19, 2010,

Judgment Entry of the Stark County Court of Common Pleas granting defendant-

appellee’s Motion to Dismiss.

                                 STATEMENT OF THE FACTS AND CASE

        {¶2}     On or about November 4, 1999, appellee, Marion Fluharty, was convicted

in Stark County Case No 1999CR1122 of rape in violation of R.C. 2907.02. a felony of

the first degree. Appellee was sentenced to ten years in prison. As memorialized in a

Judgment Entry filed in such case on November 12, 1999, appellee was determined to

be a sexual predator under Megan’s law.

        {¶3}     On January 1, 2008, Ohio's Adam Walsh Act (“AWA”) went into effect,

repealing Megan's Law and altering the classification, registration, and notification

scheme of convicted sex offenders. See R.C. Chapter 2950. Thereafter, appellee was

reclassified as a Tier III offender under the AWA and was required to verify his address

every ninety days for life at least twenty days prior to any change of address. R.C.

2950.05(A).

        {¶4}     Thereafter, on March 8, 2010, the Stark County Grand Jury indicted

appellee in the case sub judice on one count of failure to provide written notice of

residence address change in violation of R.C. 2950.05(A)(E)(1), a felony of the first

degree. The indictment indicated that appellee, having been classified a Tier III

offender, had failed to provide written notice of a residence change to the Stark County

Sheriff’s Office at least twenty days prior to the change of address. At his arraignment

on March 12, 2010, appellee entered a plea of not guilty to the charge.
Stark County App. Case No. 2010CA00242                                                        3


       {¶5}   On March 12, 2010, appellee filed a Motion for a Bill of Particulars. The

Bill of Particulars that was filed on March 16, 2010, stated, in relevant part, as follows:

       {¶6}   “Date: On or about January 29, 2010;

       {¶7}   “Location: Stark County, Ohio;

       {¶8}   “On or about January 29, 2010, the defendant having been previously

classified as a Tier III offender and being a person required to notify the Stark County

Sheriff’s Department of a change of address; failed to provide a written notice of an

address change at least twenty (20) days prior to said change. The defendant was

convicted of Rape a felony of the first degree. Defendant last registered an address of

1115 Second Street, Room 2, Canton, Stark County, Ohio on December 9, 2009.

Defendant moved from the address on January 29, 2010 to 601 Brown Ave. NW,

Canton, Stark County, Ohio and failed to register the address as required.”

       {¶9}   Appellee, on April 13, 2010, entered an oral and written plea of not guilty

by reason of insanity.

       {¶10} Thereafter, on June 11, 2010, appellant filed a superseding indictment in

the case sub judice. The indictment also charged appellee with one count of failure to

provide written notice of residence address change in violation of R.C. 2950.05(A)(E)(1)

and 2950.99(A) and indicated that appellee, having been classified a sexual predator,

had failed to provide written notice of a residence change to the Stark County Sheriff’s

Office at least twenty days prior to the change of address.

       {¶11} On July 7, 2010, appellee filed a Motion to Dismiss. Appellee, in his

motion, alleged that the offense for which he was charged was based upon a version of

a statute [R.C. 2950.05] which was found to be unconstitutional by the Ohio Supreme
Stark County App. Case No. 2010CA00242                                                    4

Court in State v. Bodyke, 126 Ohio St.3d 266, 2010-Ohio-2424, 933 N.E.2d 753.

According to appellee, “[b]ecause the prior versions of these Sections were repealed

effective January 1, 2008, and the latter version, including Defendant’s classification

was unlawful, they cannot serve as the predicates for the crimes for which he was

indicted.” Appellant filed a response to such motion on July 20, 2010.

       {¶12} A hearing on appellee’s motion was held on July 26, 2010. Pursuant to a

Judgment Entry filed on August 19, 2010, the trial court granted appellee’s motion and

dismissed the indictment. The trial court, in its Judgment Entry, stated, in relevant part,

as follows:

       {¶13} “The Defendant was classified as a sexual predator by an entry filed on

November 12, 1999, in case number, 1999CR1122. At that time, his duty to register a

change of address was at least 7 days prior to the change of resident’s address. The

Adam Walsh Act reclassified the Defendant as a Tier III offender and required him to

register at least 20 days prior to any change of resident’s address.

       {¶14} “The Bill of Particulars in the instant case states, ‘On or about January 29,

2010, the defendant having been previously classified as a Tier III offender and being a

person required to notify the Stark County Sheriff’s Department of an address change at

twenty (20) days prior to said change.’ (See attached). State v. Buehner, 110 Ohio

St.3d 403, states ‘[T]here is no requirement that the indictment demonstrate the basis

for the grand jury’s findings. The bill of particulars serves this function.’ Therefore, the

Grand Jury charged the Defendant with violating the Adam Walsh Act. Based upon the

holdings in Smith and Bodyke, the Court grants Defendant’s Motion to Dismiss because

the Adam Walsh Act was found to be unconstitutional.”
Stark County App. Case No. 2010CA00242                                                  5


      {¶15} Appellant now raises the following assignments of error on appeal:

      {¶16} “I. THE TRIAL COURT ERRED AS A MATTER OF LAW WHEN IT

DISMISSED THE SUPERSEDING INDICTMENT CHARGING APPELLEE WITH A

VIOLATION OF NOTICE OF CHANGE OF ADDRESS AS A SEXUAL PREDATOR,

[R.C. 2950.05(A)(E)(1)]. FLUHARTY’S RECLASSIFICATION HAD NO BEARING ON

THE OUTCOME OF HIS PROSECUTION FOR FAILING TO NOTIFY THE SHERIFF

OF A CHANGE OF ADDRESS.

      {¶17} “II. THE TRIAL COURT ERRED AS A MATER OF LAW IN FINDING

THAT THE BODYKE HOLDING BARRED THE SUPERSEDING INDICTMENT

CHARGING APPELLANT WITH FAILURE TO NOTIFY THE SHERIFF OF A CHANGE

OF ADDRESS BECAUSE BODYKE LEFT R.C. 2950.05 INTACT.

      {¶18} “III. THE TRIAL COURT ERRED AS A MATTER OF LAW AND ABUSED

ITS DISCRETION WHEN IT DISMISSED THE SUPERSEDING INDICTMENT

BECAUSE THE ORIGINAL BILL OF PARTICULARS REFERRED TO APPELLEE AS A

TIER III OFFENDER.”

      {¶19} For purposes of judicial economy, we shall address appellant’s

assignments of error out of sequence.

                                               III

      {¶20} Appellant, in its third assignment of error, argues that the trial court erred

in dismissing the superseding indictment because the original indictment referred to

appellee as a Tier III offender under the Adam Walsh Act.

      {¶21} In the case sub judice, appellee was originally indicted on one count of

failure to provide written notice of residence address change in violation of R.C.
Stark County App. Case No. 2010CA00242                                                   6


2950.05(A)(E)(1) and 2950.99(A), a felony of the first degree. The indictment indicated

that appellee, having been classified a Tier III offender under the Adam Walsh Act, had

failed to provide written notice of a residence change to the Stark County Sheriff’s Office

at least twenty days prior to the change of address. As is stated above, after his

conviction in 1999, appellant had been classified as a sexual predator under Megan’s

law but had subsequently been reclassified as a Tier III offender under the Adam Walsh

Act, which went into effect on January 1, 2008.

       {¶22} The Bill of Particulars filed in the case sub judice on March 16, 2010

stated as follows:

       {¶23} “Date: On or about January 29, 2010;

       {¶24} “Location: Stark County, Ohio;

       {¶25} “On or about January 29, 2010, the defendant having been previously

classified as a Tier III offender and being a person required to notify the Stark County

Sheriff’s Department of a change of address; failed to provide written notice of an

address change at least twenty (20) days prior to said change. The defendant was

convicted of Rape a felony of the first degree. Defendant last registered an address of

1115 Second Street, Room 2, Canton, Stark County, Ohio on December 9, 2009.

Defendant moved from the address on January 29, 2010 to 601 Brown Ave. NW,

Canton, Stark County, Ohio and failed to register the address as required.”

       {¶26} The Ohio Supreme Court recently held in State v. Bodyke, 126 Ohio St.3d

266, 2010-Ohio-2424, 933 N.E.2d 753, that R .C. § 2950.031 and § 2950.032, which

require the attorney general to reclassify sex offenders whose classifications have

already been adjudicated by a court and made the subject of a final order, violate the
Stark County App. Case No. 2010CA00242                                                       7


separation-of-powers doctrine by requiring the opening of final judgments. The Court

reaffirmed the principle that the authority to review, affirm, modify, or reverse trial courts'

judgments are strictly limited to appellate courts under the Ohio Constitution. Therefore,

R.C. § 2950.031 and R.C. § 2950.032 “may not be applied to offenders previously

adjudicated by judges under Megan's Law, and the classifications and community-

notification and registration orders imposed previously by judges are reinstated.”

Bodyke at ¶ 66. The Court severed those provisions from R.C. Chapter 2950. Id.

       {¶27} Thus, pursuant to Bodyke, appellee’s reclassification under the Adam

Walsh Act as a Tier III offender was unconstitutional and his original classification as a

sexual predator under Megan’s law was reinstated.

       {¶28} After the Bodyke decision was issued on June 3, 2010, appellant, on June

11, 2010, filed a superseding indictment. The superseding indictment stated, in relevant

part, as follows:

       {¶29} “That MARION RANDY FLUHARTY late of said County from on or about

the 9th day of January in the year of our Lord two thousand ten, to on or about the 29th

day of January in the year of our Lord two thousand ten, at the County of Stark,

aforesaid, having been classified a sexual predator and being a person required to

notify the Stark County Sheriff’s Office of a change of address, did fail to provide written

notice of a residence address change to the Stark County Sheriff’s Office at least twenty

days prior to the change of address, and being a felony of the first degree, the said

MARIAN RANDY FLUHARTY previously has pleaded guilty to or has been convicted of

Rape, a violation of Section 2907.02 of the Ohio Revised Code, a felony of the first

degree, in Stark County Common Pleas Court (Case No. 1999CR1122), on or about
Stark County App. Case No. 2010CA00242                                                   8


November 4, 1999, in violation of Section 2950.05(A)(E)(1) {2950.99(A)} of the Ohio

Revised Code, contrary to the statute in such cause made and provided, and against

the peace and dignity of the State of Ohio.” (Emphasis added).

      {¶30} The trial court, in the case sub judice, granted appellee’s Motion to

Dismiss the superseding indictment on the basis that the March 16, 2010 Bill of

Particulars charged appellee with violating the Adam Walsh Act which was found to be

unconstitutional in Bodyke.

      {¶31} However, after the superseding indictment was filed, appellee did not file a

motion requesting a new Bill of Particulars.        We concur with appellant that the

superseding indictment contained all of the necessary elements to put appellee on

notice of the crime that he was accused of committing. Appellee was clearly advised

that, having been adjudicated a sexual predator, he failed to register his change of

address as required.

      {¶32} We note that the purpose of a bill of particulars is “to elucidate or

particularize the conduct of the accused alleged to constitute the charged offense.”

State v. Sellards (1985), 17 Ohio St.3d 169, 171, 478 N.E.2d 781, 784. It also acts to

“inform an accused of the exact nature of the charges against him so that he can

prepare his defense thereto.” State v. Fowler (1963), 174 Ohio St. 362, 364, 189 N.E.2d

133, 134. Consistent with this purpose, Crim.R. 7(D) allows amendment of a bill of

particulars “before, during, or after a trial,” provided that “no change is made in the

name or identity of the crime charged.” See, also, State v. Brown (1994), 99 Ohio

App.3d 604, 610, 651 N.E.2d 470, 474. We find that the trial court should have

permitted appellant to amend its Bill of Particulars to indicate that appellee was a sexual
Stark County App. Case No. 2010CA00242                                                 9


predator rather than a Tier III offender because the nature and identity of the crime was

not changed.

      {¶33} Based on the foregoing, we find that the trial court erred in dismissing the

superseding indictment.

      {¶34} Appellant’s third assignment of error is, therefore, sustained.

                                              I, II

      {¶35} Based on our disposition of appellant’s third assignment of error,

appellant’s first and second assignments of error are moot.

      {¶36} Accordingly, the judgment of the Stark County Court of Common Pleas is

reversed and this matter is remanded for further proceedings.




By: Edwards, J.

Gwin, P.J. and

Hoffman, J. concur

                                                      ______________________________



                                                      ______________________________



                                                      ______________________________

                                                                JUDGES

JAE/d0603
[Cite as State v. Fluharty, 2011-Ohio-4074.]


                 IN THE COURT OF APPEALS FOR STARK COUNTY, OHIO

                                    FIFTH APPELLATE DISTRICT


STATE OF OHIO                                     :
                                                  :
                            Plaintiff-Appellant   :
                                                  :
                                                  :
-vs-                                              :       JUDGMENT ENTRY
                                                  :
MARION FLUHARTY                                   :
                                                  :
                         Defendant-Appellee       :       CASE NO. 2010CA00242




       For the reasons stated in our accompanying Memorandum-Opinion on file, the

judgment of the Stark County Court of Common Pleas is reversed and remanded to the

trial court for further proceedings. Costs assessed to appellee.




                                                      _________________________________


                                                      _________________________________


                                                      _________________________________

                                                                   JUDGES
