         [Cite as Hollis v. State, 2020-Ohio-2924.]
                 IN THE COURT OF APPEALS
             FIRST APPELLATE DISTRICT OF OHIO
                  HAMILTON COUNTY, OHIO



ROBERT HOLLIS, JR.,                                   :   APPEAL NO. C-190195
                                                          TRIAL NO. SP-1400008
        Petitioner-Appellant,                         :

  vs.                                                 :     O P I N I O N.

STATE OF OHIO,                                        :

    Respondent-Appellee.                              :




Criminal Appeal From: Hamilton County Court of Common Pleas

Judgments Appealed From Are: Reversed and Cause Remanded

Date of Judgment Entry on Appeal: May 13, 2020



Raymond T. Faller, Hamilton County Public Defender, and Krista Gieske, Assistant
Public Defender, for Petitioner-Appellant,

Joseph T. Deters, Hamilton County Prosecuting Attorney, and Paula E. Adams,
Assistant Prosecuting Attorney, for Respondent-Appellee.
                     OHIO FIRST DISTRICT COURT OF APPEALS



WINKLER, Judge.
       {¶1}   In 2001 in Florida, petitioner-appellant Robert Hollis, Jr., pleaded no

contest to and was convicted of lewd or lascivious battery. Hollis was sentenced to

six months’ incarceration and two years of sex-offender probation. Even though

Hollis was classified as a sexually-oriented offender, and not a sexual predator,

under Florida law he was required to register as a sex offender for life, because

Florida law required all sex offenders to register for life. Hollis subsequently violated

his probation and was sentenced to ten years’ incarceration.

       {¶2}   Hollis moved to Ohio in 2014, and he was automatically classified as a

sexual predator under Ohio’s version of Megan’s Law because of his Florida lifetime

registration requirement. Hollis filed a motion for reclassification under former R.C.

2950.09(F) and credit for previous registration under former R.C. 2950.07(E). He

also moved to vacate the “classification unlawfully imposed by the Hamilton County

sheriff.” Hollis argued, among other things, that his Florida offense of lewd or

lascivious battery was not substantially equivalent to any Ohio offense. The state

argued that the Florida offense was substantially equivalent to Ohio’s unlawful-

sexual-conduct-with-a-minor statute.

       {¶3}   The trial court determined that Hollis’s Florida conviction for lewd or

lascivious battery was substantially equivalent to Ohio’s unlawful-sexual-conduct-

with-a-minor statute, and that his Florida lifetime registration requirement

automatically subjected him to lifetime registration in Ohio. Following a hearing, the

court found that Hollis had not shown that he was not likely to commit a sex offense

in the future. The court overruled Hollis’s motions for reclassification and vacation

of his sexual-predator classification. Hollis has appealed.




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        {¶4}   As we explained in Phipps v. Ohio, 2018-Ohio-720, 107 N.E.3d 754, ¶ 4

(1st Dist.),

        Under former R.C. 2950.09(A), an out-of-state sex offender who had

        been convicted of a nonexempt sex offense and was required to

        register for life as a sex offender in the state where he was convicted

        was automatically classified as a sexual predator in Ohio. Former R.C.

        2950.09(F) permitted the offender to challenge the sexual-predator

        classification.     When an out-of-state offender challenged his

        classification under former R.C. 2950.09(F), the trial court was first

        required to determine whether the sexually-oriented offense in the

        other state was substantially equivalent to an Ohio sexually-oriented

        offense. State v. Pasqua, 157 Ohio App.3d 427, 2004-Ohio-2992, 811

        N.E.2d 601, ¶ 22 (1st Dist.).     If the out-of-state offense was not

        substantially equivalent to an Ohio sexually-oriented offense, the

        offender was not required to register in Ohio. See Phan v. Leis, 1st

        Dist. Hamilton No. C-050842, 2006-Ohio-5898; Doe v. Leis, 1st Dist.

        Hamilton No. C-050591, 2006-Ohio-4507.

        {¶5}   Hollis’s first assignment of error alleges that the trial court erred in

overruling his “motions for reclassification and vacation of his sexual predator

classification where the threshold question of ‘substantial equivalence’ was not

properly analyzed.”       Hollis argues that a comparison of the statutory elements

reveals that the Florida offense of lewd or lascivious battery is not substantially

equivalent to Ohio’s offense of unlawful sexual conduct with a minor, and that the

trial court improperly went beyond the statutory elements in making its substantial-

equivalence determination, because this case did not fall within the narrow class of

cases permitting consideration of the facts of the offense. Hollis specifically argues

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that the Florida lewd-or-lascivious-battery statute and Ohio’s unlawful-sexual-

conduct-with-a-minor statute are not substantially similar because of the differences

in the ages of the offenders, the ages of the victims, and the mens rea required for a

conviction.

       {¶6}    Hollis was convicted in Florida of lewd or lascivious battery under

Fla.Stat.Ann. 800.04(4) for engaging in sexual activity with a “person 12 years of age

or older but less than 16 years of age” or (b) encouraging, forcing, or enticing a

person under the age of 16 to engage in acts “involving sexual activity.” It is not

entirely clear from the Florida record which subsection of the Florida statute Hollis

pled under, but in the hearing before the trial court in this case Hollis stipulated that

he had engaged in sexual activity with a child older than 12 years of age but less than

16 years of age. The Florida statute is a strict-liability statute with regard to the age

of the victim. Fla.Stat.Ann. 800.04(3) states, “Ignorance or belief of victim’s age.—

The perpetrator’s ignorance of the victim’s age, the victim’s misrepresentation of his

or her age, or the perpetrator’s bona fide belief of the victim’s age cannot be raised as

a defense in a prosecution under this section.” R.C. 2907.04(A), Ohio’s unlawful-

sexual-conduct-with-a-minor statute states, “No person who is eighteen years of age

or older shall engage in sexual conduct with another, who is not the spouse of the

offender, when the offender knows the other person is thirteen years of age or older

but less than sixteen years of age, or the offender is reckless in that regard.”

       {¶7}    In State v. Lloyd, 132 Ohio St.3d 135, 2012-Ohio-2015, 970 N.E.2d

870, ¶ 31, the Ohio Supreme Court stated,

       [I]n order to determine whether an out-of-state conviction is

       substantially equivalent to a listed Ohio offense, 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

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       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, Ohio courts are permitted to consult a limited range of material

       contained in the record, including charging documents, plea

       agreements, transcripts of the 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.

       {¶8}   We applied the Lloyd test in Phipps, 2018-Ohio-720, 107 N.E.3d 754,

in holding that the New York offense of sexual misconduct was not substantially

equivalent to the Ohio offense of unlawful sexual conduct with a minor, and

therefore, Phipps, who had moved to Ohio from New York, did not have to register as

a sex offender in Ohio. In 2006, Phipps had been convicted in New York of “sexual

misconduct.” Because of his conviction, Phipps was required to register as a sex

offender in New York. He moved to Ohio and was automatically classified by the

Hamilton County sheriff as a sexual predator. In determining that the New York

offense of sexual misconduct was not substantially equivalent to the Ohio offense of

unlawful sexual conduct with a minor, we noted that Ohio’s statute applied to

persons over the age of 18, while the New York statute did not set an age limit for the

perpetrator; Ohio’s law prohibited sexual conduct with victims between 13 and 15

years of age, while New York extended the statute to victims under 17; Ohio required

that the perpetrator knew the age of his victim or was reckless in that regard, while

New York did not require a mens rea; and the Ohio offense was a felony, while the

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                     OHIO FIRST DISTRICT COURT OF APPEALS



New York offense was a misdemeanor. We also pointed out that even had we been

unable to determine from a comparison of the statutes whether the offenses were

substantially equivalent, under Lloyd Phipps would not have been required to

register in Ohio because, going beyond the statutes and relying on a limited portion

of the record, the New York factfinder was not required to find that Phipps knew the

age of his victim or was reckless in that regard, which was an essential element for a

conviction under the Ohio statute. Id. at ¶ 13-15.

       {¶9}   In deciding Phipps, we relied on State v. Collier, 8th Dist. Cuyahoga

Nos. 100906, 101235 and 101272, 2014-Ohio-5683, appeals not accepted, 143 Ohio

St.3d 1405, 2015-Ohio-2747, 34 N.E.3d 133, in which the Eighth Appellate District

held that because the age of consent and mens rea elements of the Illinois

aggravated-criminal-sexual-abuse statute were different than those in Ohio’s

unlawful-sexual-conduct-with-a-minor statute, the statutes were not substantially

similar. The Illinois statue prohibited “[a]n act of sexual conduct with a victim at

least 13 years of age but under 17, and the accused was at least five years older than

the victim.” See Section 72 Ill.Comp.Stat. 5/12-16.(d); Collier at ¶ 16. The Collier

court pointed out that both statutes prohibit sexual conduct by a person 18 or older,

but that Ohio prohibits sexual conduct with persons 13 to 15, while Illinois defined its

class of victims to include 16 year olds. The court stated,

       Immediately, from the excerpt above, a comparison of the elements of

       these two statutes, it is easily discernable that these two statutes do not

       align at all and the trial judge properly concluded that the two statutes

       are not substantially equivalent. Here, based on the difference in the

       age of the victim element of the respective statutes, Collier would not

       have been convicted in Ohio for engaging in sexual conduct with a 16

       year old.

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                     OHIO FIRST DISTRICT COURT OF APPEALS



Collier at ¶ 19.

       {¶10} The Eighth District noted that the statutes also differed in another

“significant manner,” because “the Illinois statute is one of strict liability and

requires no mens rea, while Ohio’s statute requires proof that the conduct was done

‘knowingly’ or at a minimum, ‘recklessly.’ ” Id. at ¶ 22. “Thus, there is a distinct

difference between the Illinois and the Ohio statutes regarding not only the age of

consent, but also the mens rea.” Id. The court concluded that because the statutes

were not substantially equivalent, Collier was not required to register as a sex

offender in Ohio.

       {¶11} In the instant case, there are significant differences between the

Florida and Ohio statutes. Ohio’s statute applies to persons over 18, while the

Florida statute does not set an age limit for the perpetrator. Ohio’s law prohibits

sexual conduct with victims between the ages of 13 and 15, while the Florida

prohibition extends to 12-year-old victims, and in the case of Fla.Stat.Ann. 800.04(b)

to any person under 16. Ohio requires that the perpetrator knew the age of the

victim or was reckless in that regard, while Florida does not require a mens rea.

       {¶12} Applying the Lloyd test as interpreted by this court in Phipps, it is

clear that the Florida lewd-or-lascivious-battery statute is not substantially similar to

Ohio’s unlawful-sexual-misconduct-with-a-minor statute. Therefore, Hollis is not

required to register as a sex offender in Ohio. See Phipps, 2018-Ohio-720, 107

N.E.2d 754, at ¶ 14; Doe, 1st Dist. Hamilton No. C-050591, 2006-Ohio-4507

(holding, prior to Lloyd, that the Florida attempted-sexual-battery offense for which

Doe had been convicted was not substantially equivalent to Ohio’s former offense of

attempted felonious sexual penetration or to the current Ohio offense of attempted

rape, and thus Doe was not required to register as a sex offender in Ohio because

both the former and current Ohio statutes specifically included as an element force

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                     OHIO FIRST DISTRICT COURT OF APPEALS



or the threat of force, while the Florida statue did not require force beyond that

which was necessary for penetration).

       {¶13} We point out, as we did in Phipps, that even had we been unable to

determine from a comparison of the elements whether the Florida lewd-or-

lascivious-battery statute was substantially equivalent to Ohio’s unlawful-sexual-

conduct-with-a-minor statute, Hollis would not be required to register as a sex

offender in Ohio. See Phipps at ¶ 15. As we stated in Phipps,

       Under Lloyd, if the court cannot discern from a comparison of the

       statutes whether the offenses are substantially equivalent, the 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 Ohio statute.”

       (Emphasis added.) Lloyd, 132 Ohio St.3d 135, 2012-Ohio-2015, 970

       N.E.2d 870, at ¶ 31. The New York court was not required to find that

       Phipps knew the age of his victim or was reckless in that regard, an

       element essential to a conviction under the Ohio statute. Therefore,

       the statutes are not substantially equivalent, and Phipps is not

       required to register in Ohio.

Id. Similarly, the Florida court was not required to find that Hollis knew the age of

his victim or was reckless in that regard, which is essential to a conviction under the

Ohio statute. Therefore, the statutes are not substantially equivalent. Hollis’s first

assignment of error is sustained.

       {¶14} Hollis’s second assignment of error, which essentially argues that the

trial court erred in overruling his petitions for reclassification and vacation of his

sexual-predator classification because Florida’s lifetime registration requirement is

not substantially similar to Ohio’s sexual-predator classification and Hollis proved by

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                     OHIO FIRST DISTRICT COURT OF APPEALS



clear and convincing evidence that he was not likely to commit a sexually-oriented

offense in the future, is made moot by our disposition of the first assignment of error.

Therefore, we do not address it.

       {¶15} We hold that the trial court erred in its substantial-equivalence

determination, reverse the court’s denial of Hollis’s motion to vacate his

classification and his petition for reclassification, and remand this cause with

instructions to the trial court to enter an order that Hollis is not required to register

as a sex offender in Ohio.

                                             Judgments reversed and cause remanded.

ZAYAS, P.J., and MYERS, J., concur.

Please note:
       The court has recorded its own entry this date.




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