         [Cite as State v. Mosley, 2015-Ohio-3597.]
                 IN THE COURT OF APPEALS
             FIRST APPELLATE DISTRICT OF OHIO
                  HAMILTON COUNTY, OHIO



STATE OF OHIO,                                        :   APPEAL NO. C-140633
                                                          TRIAL NO. B-1404312
        Plaintiff-Appellant,                          :

  vs.                                                 :     O P I N I O N.

ROBERT MOSLEY,                                        :

    Defendant-Appellee.                               :




Criminal Appeal From: Hamilton County Court of Common Pleas

Judgment Appealed From Is: Affirmed

Date of Judgment Entry on Appeal: September 4, 2015


Joseph T. Deters, Hamilton County Prosecuting Attorney, and Paula E. Adams,
Assistant Prosecuting Attorney, for Plaintiff-Appellant,

Raymond T. Faller, Hamilton County Public Defender, and Marguerite Slagle,
Assistant Public Defender, for Defendant-Appellee.




Please note: this case has been removed from the accelerated calendar.
                     OHIO FIRST DISTRICT COURT OF APPEALS



FISCHER, Judge.
       {¶1}   Plaintiff-appellant state of Ohio has appealed the trial court’s

judgment, dismissing the indictment against defendant-appellee Robert Mosley for

failing to provide notice of a change of address in violation of former R.C. 2950.05.

The court determined that Mosley’s initial classification as a sexually oriented

offender violated his right to due process, and therefore, Mosley had no duty to

register. We affirm the trial court’s judgment.

                                Facts and Procedure

       {¶2}   In 1995, Mosley was convicted of robbery and abduction.               The

indictment did not allege a sexual motivation or include the ages of the victims. He

was sentenced to concurrent terms of imprisonment of three to 15 years for the

robbery and two to ten years for the abduction. Prior to his release from prison in

November 2000, Mosley was informed by his case manager that he would be

required to register as a sexually oriented offender because the abduction was

considered a sex offense. Apparently, some unknown person in the prison system

had determined that the victims of the abduction had been minors, and therefore,

Mosley was required to register as a sexually oriented offender.

       {¶3}   On August 8, 2014, Mosley was indicted for failing to provide notice of

an address change. Mosley filed a motion to dismiss the indictment because (1) the

factual finding that Mosley had committed a sex offense based on the ages of his

victims was made by someone in the prison system and not a court, violating the

separation-of-powers doctrine, and (2) abduction without a sexual motivation was

not a sex offense, and requiring Mosley to register as a sex offender violated his state

and federal constitutional rights to due process.




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                     OHIO FIRST DISTRICT COURT OF APPEALS



       {¶4}   The trial court granted Mosley’s motion to dismiss the indictment,

finding that requiring Mosley to register as a sexually oriented offender for abduction

with no sexual motivation violated his right to due process. The court also concluded

that the child-victim-offender statute did not apply to Mosley because he was not

incarcerated on its effective date and he did not have a lawful duty to register when

the law became effective. The court did not address the separation-of-powers issue.

The state has appealed.

       {¶5}   After reviewing the record, we ordered the parties to file supplemental

briefs addressing whether Mosley’s duty to register had expired in 2010, ten years

after he had been released from prison and notified of his duty to register as a

sexually oriented offender. The parties filed a joint supplemental brief representing

that due to various incarcerations and the tolling provision in former R.C.

2950.07(D), Mosley was scheduled to register until May 14, 2016.

                                      Analysis

       {¶6}   The state’s sole assignment of error alleges that the trial court erred in

dismissing the indictment because, as of July 31, 2003, Mosley had a duty to register

as a child-victim offender under Megan’s Law. The Megan’s Law version of R.C.

2950.041(A)(1)(c) provided for the continuation of registration duties when the

offense was defined under prior law as a sexually oriented offense, but was changed

to a child-victim-oriented offense under the 2003 amendments to Megan’s Law. The

state argues that because Mosley had a duty to register as a sexually oriented

offender under prior law, his duty was continued after the 2003 amendments

changed that offense to a child-victim-oriented offense.

       {¶7}   Mosley argues that his classification under prior law as a sexually

oriented offender for abduction, which was based solely on the ages of his victims as



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determined by a prison official, and not on any finding of a sexual motivation,

violated the separation-of-powers doctrine and his right to due process of law.

       {¶8}   Mosley committed his abduction offense in 1995. In 1997, Megan’s

Law became effective. The 1997 Megan’s Law version of R.C. 2950.01(D)(2) defined

abduction of a victim under the age of 18 as a sexually oriented offense. Because

Mosley was incarcerated at the time Megan’s Law became effective, he was subject to

its registration provisions. See former R.C. 2950.04(A)(1)(a). But the trial court in

Mosley’s case had not made any finding about the ages of the victims, presumably

because at the time of trial, the age of the victim was not an element of the crime of

abduction. Apparently, shortly before Mosley was released from prison in 2000, a

prison official made a determination that Mosley’s victims had been under the age of

18 and notified him of his duty to register as a sexually oriented offender.

                                     Due Process

       {¶9}   Mosley argues that the trial court was correct in finding that requiring

him to register as a sexually oriented offender for abduction with no sexual

motivation violated his right to due process.

       {¶10} In State v. Golden, 1st Dist. Hamilton Nos. C-030460 and C-030461,

2004-Ohio-2276, ¶ 26-27, we noted,

       The legislative purpose behind R.C. Chapter 2950 is to protect the

       public from sex offenders by providing the public with adequate notice

       and information about the offenders. But the statute’s purpose may

       not be served, as applied to an individual offender, by its automatic

       labeling of an offender as a sexually-oriented offender where the

       “sexually oriented offense” requires no proof of sexual purpose or

       motivation.   Accordingly, while a defendant is not constitutionally

       entitled to a classification hearing to determine whether he is a

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       sexually-oriented offender, the defendant may challenge the statute’s

       constitutionality as applied to him where the “sexually oriented

       offense” is not sexually motivated.

              Indeed, some Ohio courts have held that the application of R.C.

       Chapter 2950’s requirement that an individual be classified as a

       sexually-oriented offender, where the offenses are committed without

       sexual motivation, is unreasonable and arbitrary, and bears no rational

       relationship to the statute’s purpose.

(Internal citations omitted.)

       {¶11} In State v. Washington, 11th Dist. Lake No. 99-L-015, 2001 Ohio App.

LEXIS 4980 (Nov. 2, 2001), Washington pleaded guilty to abduction of his former

girlfriend and her minor daughter. Although the abduction of the minor had not

been motivated by any sexual purpose, the trial court “reluctantly” classified

Washington as a sexually oriented offender. The Eleventh Appellate District held

that Washington’s classification as a sexually oriented offender was unconstitutional,

because there was no rational relationship between the stated legislative intent of

Ohio’s Megan’s Law, the legitimate governmental interest of protecting the public

from sex offenders, and labeling Washington as a sex offender when there was no

evidence that his offense had been motivated by a sexual purpose. Washington at

*12-14. “[U]nless there is some evidence of sexual motivation, there is no rational

basis for categorizing an abduction of a victim who is less than eighteen years old as

being a sexually oriented offense. * * * Absent a showing that the abduction was

motivated for a sexual purpose, appellant’s classification as a sexually oriented

offender cannot stand.” Id. at *14. See State v. Hickman, 11th Dist. Portage No.

2003-P-0087, 2004-Ohio-3929 (noting that the statute had been amended to

require that the abduction of a minor be committed with a sexual motivation to

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                     OHIO FIRST DISTRICT COURT OF APPEALS



qualify as a sexually oriented offense, and holding that there is no rational basis for

classifying abduction of a minor without a sexual motivation as a sexually oriented

offense).

       {¶12} In State v. Barksdale, 2d Dist. Montgomery No. 19294, 2003-Ohio-43,

Barksdale pleaded guilty to four counts of kidnapping. All victims were minors. The

trial court classified Barksdale as a sexually oriented offender. The parties stipulated

that Barksdale had committed the offenses without any sexual motivation or

purpose. The Second Appellate District held that labeling Barksdale as a sexually

oriented offender and requiring him to register violated due process because it bore

“no rational relationship to the purposes of the statute and is unreasonable and

arbitrary.” Barksdale at ¶ 3. See State v. Young, 2d Dist. Montgomery Nos. 19472

and 19473, 2003-Ohio-2205 (classifying an offender as a sexually oriented offender

where the abduction-of-a-minor offenses were committed without any sexual

motivation or purpose violates due process).

       {¶13} The Eighth Appellate District, in State v. Gooden, 8th Dist. Cuyahoga

No. 82621, 2004-Ohio-2699, adopted the reasoning of the Second District and held

that where the kidnapping of the 14-year-old victim involved no sexual motivation,

classifying Gooden as a sexually oriented offender violated due process.

       We agree with the Second District and find that the application of the

       statutory requirement that Gooden be classified as a sexually oriented

       offender, in a case in which there was no evidence that the offense was

       committed with any sexual motivation or purpose, is unreasonable and

       arbitrary, bears no rational relationship to the purposes of the statute,

       and, thus, offends the Due Process Clauses of both the Ohio and

       United States Constitutions.

Gooden at ¶ 16.

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                     OHIO FIRST DISTRICT COURT OF APPEALS



       {¶14} In State v. Small, 162 Ohio App.3d 375, 2005-Ohio-3813, 833 N.E.2d

774 (10th Dist.), Small had been found guilty in 1997 of kidnapping a minor and

sentenced to five years in prison. There was no evidence that the kidnapping had

been committed with any sexual motivation or purpose. In 2002, Small was indicted

for violations of former R.C. 2950.05 and 2950.06, which required a sex offender to

provide notice of an address change and to verify his current address. The Tenth

Appellate District held that Small’s challenge to his classification through a motion to

dismiss the indictment had been proper and timely, and that the trial court did not

err in dismissing the indictment because, in the absence of evidence that Small had

committed the kidnapping of the minor with a sexual motivation, classifying him as a

sexually oriented offender was “not rationally related to a legitimate state interest as

applied to defendant under former R.C. Chapter 2950” and there was “no rational

basis to subject him to registration requirements and prosecution for failure to

register under former R.C. Chapter 2950.”           Accordingly, the Tenth District

concluded, “[T]he trial court did not err in determining that the denomination of

defendant as a ‘sexually oriented offender’ lacked a rational basis under substantive

due process as applied to defendant.” Small at ¶ 29-30.

       {¶15} We agree with the reasoning of the Eleventh, Second, Eighth and

Tenth Appellate Districts and hold that requiring Mosley to register as a sexually

oriented offender in the absence of any evidence that he had committed the

abduction with a sexual motivation violates due process. Further, we hold that

Mosley is not subject to the child-victim-offender statute, because he was not

incarcerated on its effective date, and he did not have a lawful duty to register when

the law became effective.




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                     OHIO FIRST DISTRICT COURT OF APPEALS



       {¶16} Because we have held that requiring Mosley to register as a sexually

oriented offender violates due process, we need not address Mosley’s separation-of-

powers argument.

                                     Conclusion

       {¶17} The assignment of error is overruled. The judgment of the trial court,

dismissing the indictment against Mosley for failing to notify of an address change, is

affirmed.

                                                                  Judgment affirmed.

HENDON, P.J., concurs.
DEWINE, J., dissents.

DEWINE, J., dissenting.

       {¶18} I see things quite differently than the majority.

       {¶19} Despite the fact that Mosley was convicted of violating his registration

requirements twice previously, the majority finds on substantive-due-process

grounds that he never had a duty to register, and therefore, upholds the trial court’s

dismissal of the current indictment against him. In my view, this conclusion rests on

two missteps: (1) allowing Mosley to challenge his classification as a sex offender in

a case in which he is being prosecuted under the child-victim-offender classification,

and (2) adopting an expansive view of substantive due process that goes well beyond

the contours set forth by the United States and Ohio Supreme Courts.

            I. Mosley is Being Prosecuted for Failure to Register as a Child-
                                   Victim Offender

       {¶20} The majority opinion addresses in some detail the constitutionality of

requiring Mosley to register as a sex offender. It concludes that requiring him to do

so violates the substantive component of the Due Process Clause.            It is this

conclusion that I will take issue with in Part II of this dissent. But before we get to

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the constitutional issue, there is a statutory issue that needs to be addressed, which,

in my view, is dispositive of this appeal.

        {¶21} Mr. Mosley was not prosecuted for failure to register as a sex offender.

He was prosecuted for failure to register as a child-victim offender.       When Mosley

was released from prison in 2000, he was required to register as a sexually oriented

offender under the version of Megan’s Law in effect at the time because he had been

convicted of the abduction of children under the age of 18. In 2003, Megan’s Law

was amended to change the classification of individuals such as Mosley to “child-

victim offender.” It is for a violation of his registration requirements as a child-

victim offender that Mosley was prosecuted in this case.

        {¶22} Thus, a threshold question is whether Mosley can challenge the

constitutionality of requiring him to register as a sex offender when he is not

currently required to register as a sex offender and is not being prosecuted for

violating any sex-offender-registration requirements. The majority devotes a single

conclusory sentence to this question at the end of its opinion: “Further, we hold that

Mosley is not subject to the child-victim-offender statute because he was not

incarcerated on the effective date, and he did not have a lawful duty to register when

the law became effective.” I don’t find it nearly so simple.

        {¶23} The 2003 child-victim-offender amendments provided that they

applied to “an offender who, immediately prior to the effective date of [the] section,

was required to register as a result of the conviction of or plea of guilty” to the offense

for which Mosley was convicted. Former R.C. 2950.041(A)(1)(c), effective July 31,

2003.    The registration duty was “considered * * * a continuation of the duty

imposed upon the offender prior to the effective date” of the amendments. Id. Thus,



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                     OHIO FIRST DISTRICT COURT OF APPEALS



the question is whether the child-victim-offender legislation applies to Mosley

because he was “required to register” when the 2003 amendments went into effect.

       {¶24} Certainly the legislature intended to encompass offenders like Mosley

within the statutory language. The legislation is specifically aimed at those who

commit certain crimes against children—abduction, kidnapping without a sexual

motivation, unlawful restraint, child enticement—regardless of a sexual motivation.

See former R.C. 2950.01(S), effective July 31, 2003. Indeed, those who commit a

“sexually violent offense” are excluded from the child-victim-offender category and

instead remain under the sexually-oriented-offense categorization. See former R.C.

2950.01(D), effective July 31, 2003.

       {¶25} One conceivable response is that regardless of what the legislature

intended, Mosley was not “required” to register because the statute was

unconstitutional as applied to him. But there is nothing in our record that bears that

out. We don’t have any facts before us—save the arguments of counsel—about his

initial offense.   The cases upon which the majority relies deal with as-applied

challenges to the statute.     Here, Mr. Mosley never raised a challenge to his

classification during the time he was classified as a sexually oriented offender. I fail

to see the logic of allowing him to raise such a challenge now when he is no longer

subject to registration as a sexually oriented offender.

       {¶26} In my view, since the statutory language demonstrates that the

legislature intended to classify Mosley as a child-victim offender, the only remaining

question is whether it could constitutionally do so. The United States Supreme Court

has held that a state may constitutionally apply a civil remedial statute like Megan’s

Law to offenders who committed their crimes and were released from prison prior to

the effective date of the statute. Smith v. Doe, 538 U.S. 84, 105-106, 123 S.Ct. 1140,

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                     OHIO FIRST DISTRICT COURT OF APPEALS



155 L.Ed.2d 164 (2003). While the Ohio Supreme Court has not directly addressed

the issue of application of a registration scheme to an offender who was released

from prison prior to the effective date of the statute, it did find that the 2003

amendments to Megan’s Law violated neither the retroactivity clause of the Ohio

Constitution nor the Ex Post Facto Clause of the United States Constitution. State v.

Ferguson, 120 Ohio St.3d 7, 2008-Ohio-4824, 896 N.E.2d 110, ¶ 40 and 43. Thus,

regardless of whether Mosley could have mounted an unconstitutional-as-applied

challenge prior to the 2003 amendments, the legislature was on solid constitutional

footing in classifying him as a child-victim offender in 2003.

       {¶27} Under the plain language of its enactment, the legislature classified

Mosley as a child-victim offender in 2003. It acted within its constitutional powers

when it did so. The state should be able to prosecute him for a violation of his duties

under the 2003 enactment.

                              II. Substantive Due Process

       {¶28} By all rights, the analysis ought to stop with the first section. Because

Mosley had a duty to register under the 2003 amendments, there is no need to

speculate as to whether a substantive-due-process challenge to his previous

registration requirement might have been successful.        But because the majority

hinges its opinion on a substantive-due-process violation, I will address the issue.

       {¶29} The Due Process Clause of the Fourteenth Amendment protects

against the deprivation of life, liberty or property without due process of the law.

While its text seems to be limited to matters of procedure, it has been held to contain

a substantive component that forbids certain government action regardless of the

procedures employed. See Daniels v. Williams, 474 U.S. 327, 331, 106 S.Ct. 662, 88

L.Ed.2d 662 (1986). But we have been cautioned that we must be “reluctant to

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                     OHIO FIRST DISTRICT COURT OF APPEALS



expand the concept of substantive due process because guideposts for responsible

decisionmaking in this unchartered area are scarce and open-ended.” Washington v.

Glucksberg, 521 U.S. 702, 720, 117 S.Ct. 2258, 138 L.Ed.2d 771 (1997), citing Collins

v. Harker Hts., 503 U.S. 115, 125, 112 S.Ct. 1061, 117 L.Ed.2d 261 (1992).

       {¶30} “The first (and often last) issue in this area is the proper

characterization of the individual’s asserted right.” Blau v. Fort Thomas Pub. School

Dist., 401 F.3d 381, 393 (6th Cir.2005). Government actions that infringe on a

fundamental right are subject to strict scrutiny, while those that do not need only be

rationally related to a legitimate government interest. Id. See State v. Lowe, 112

Ohio St.3d 507, 2007-Ohio-606, 861 N.E.2d 512.

       {¶31} The Ohio Supreme Court has held that “there is nothing in [Megan’s

Law] that infringes upon any * * * fundamental constitutional right that has been

recognized by the United States Supreme Court.” State v. Williams, 88 Ohio St.3d

513, 531, 728 N.E.2d 342 (2000). Thus, the enactment is only subject to rational-

basis review.

       {¶32} Under traditional constitutional norms of jurisprudence, the

determination of the standard of review as rational basis should be largely the end of

the matter. Plainly, the legislature had a rational basis for subjecting those who

abduct children to registration and notification requirements. It is not irrational to

assume that most citizens would like to know if a child abductor lived next door.

And it is certainly not irrational to want to keep track of individuals who commit

such deeds.

       {¶33} Nonetheless, the majority applies what it says is rational-basis review

to find the statute unconstitutional. In doing so, it relies upon our decision in

Golden and case law from other districts that have found the statute unconstitutional

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                     OHIO FIRST DISTRICT COURT OF APPEALS



as applied to particular offenders under rational-basis review. But in reality, the

scrutiny applied by the majority and the other districts goes well beyond rational-

basis review.

       {¶34} Under well-established norms, “a state has no obligation to produce

evidence to sustain the rationality of a statutory classification.”      Columbia Gas

Transm. Corp. v. Levin, 117 Ohio St.3d 122, 2008-Ohio-511, 882 N.E.2d 400, ¶ 91.

Rather, “[t]he party challenging the constitutionality of a statute ‘bears the burden to

negate every conceivable basis that might support the legislation.’ ”    Pickaway Cty.

Skilled Gaming, L.L.C. v. Cordray, 127 Ohio St.3d 104, 2010-Ohio-4908, 936 N.E.2d

944, quoting Columbia Gas at ¶ 91. See Lyons v. Limbach, 40 Ohio St.3d 92, 532

N.E.2d 106 (1988); Fabrey v. McDonald Village Police Dept., 70 Ohio St.3d 351, 639

N.E.2d 31 (1994); Logue v. Leis, 169 Ohio App.3d 356, 2006-Ohio-5597, 862 N.E.2d

900 (1st Dist.). See also Madden v. Kentucky, 309 U.S. 83, 60 S.Ct. 406, 84 L.Ed.

590 (1940).

       {¶35} The cases cited by the majority fail to apply this standard. As the

majority notes, the basic premise of the decisions was that the stated legislative

purpose of the act—protecting the public from sex offenders—was not served by

legislation that required registration of those not shown to have acted with a sexual

motivation. Golden, 1st Dist. Hamilton Nos. C-030460 and C-030461, 2004-Ohio-

2276, at ¶ 26-27; Barksdale, 2d Dist. Montgomery No. 19294, 2003-Ohio-43, at ¶ 3;

Washington, 11th Dist. Lake No. 99-L-015, 2001 Ohio App. LEXIS 4980, at *12-14.

       {¶36} But the United States Supreme Court has rejected the notion that

rational-basis review is accomplished by a judicial weighing of whether legislation, in

fact, achieves the legislature’s stated purpose. In the words of the Supreme Court,

“because we never require a legislature to articulate its reasons for enacting a statute,

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                     OHIO FIRST DISTRICT COURT OF APPEALS



it is entirely irrelevant for constitutional purposes whether the conceived reason for

the   challenged   [infringement]    actually   motivated   the   legislature.”    Fed.

Communications Comm. v. Beach Communications, Inc., 508 U.S. 307, 315, 113

S.Ct. 2096, 124 L.Ed.2d 211 (1993).     “Where * * * there are plausible reasons for

[legislative] action, our inquiry is at an end.” United States RR. Retirement Bd. v.

Fritz, 449 U.S. 166, 179, 101 S.Ct. 453, 66 L.Ed.2d 368 (1980).

        {¶37} The majority cannot seriously argue that it was irrational for the

legislature to set up a registration and notification system for those who commit

crimes against children. Rather, what it seems to think is irrational is that the

legislature included these offenders within a broader scheme to which it affixed the

label “sex offender.” But for purposes of analyzing whether infringements of liberty

are constitutional, the pertinent inquiry is into the nature of the infringements into

the individual’s liberty, not on the nomenclature attached. What matters under the

Fourteenth Amendment is the minor infringement occasioned by requiring the

offender to register with the authorities. This is the liberty interest protected by the

Fourteenth Amendment, which is subject to rational-basis review.             The label

attached is not. The Due Process Clause does not protect against being called a

name.

        {¶38} And even if we were to address the rationality of the sweeping up of

those who commit crimes against children in a larger sex offender classification, the

minimal requirements of rational-basis review are certainly satisfied. The legislature

could well presume that some significant number of those who committed crimes

against children did so with a sexual motivation. It also could rationally consider the

high risk of sexual exploitation of child victims in making the classification. See

State v. Bowman, 10th Dist. Franklin No. 02AP-1025, 2003-Ohio-5341, ¶ 40. And it

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                       OHIO FIRST DISTRICT COURT OF APPEALS



could fairly conclude that even for those who acted with no provable sexual

motivation, the notification and registration requirements still served important

public purposes.      We are reminded, “the problems of government are practical ones

and may justify, if they do not require, rough accommodations—illogical, it may be,

and unscientific." Id. at 175, quoting Metropolis Theatre Co. v. Chicago, 228 U.S. 61,

69-70, 33 S.Ct. 441, 57 L.Ed. 730 (1913).

       {¶39} At bottom, the majority opinion and the cases cited therein seem to

rest on the bald notion that it was a bad idea to sweep those who commit crimes

against children up in a “sex-offender” registration scheme when they have not been

shown to be sex offenders. And it may well have been a bad idea. The legislature

certainly had a better one when it changed the moniker to child-victim offender. But

not all bad ideas are unconstitutional. Rational-basis review “is not a license for

courts to judge the wisdom, fairness, or logic of legislative choices.”        Beach

Communications at 313.         “Nor does it authorize ‘the judiciary [to] sit as a

superlegislature to judge the wisdom or desirability of legislative policy

determinations made in areas that neither affect fundamental rights nor proceed

along suspect lines.’ ” Heller v. Doe, 509 U.S. 312, 319, 113 S.Ct. 2637, 125 L.Ed.2d

257 (1993), quoting New Orleans v. Dukes, 427 U.S. 297, 303, 96 S.Ct. 2513, 49

L.Ed.2d 511 (1976).

       {¶40} Because Mosley has failed in his burden to “negate every conceivable

basis that might support the legislation,” I disagree with the majority’s conclusion

that the legislation did not constitutionally apply to him at the time that the 2003

amendments to Megan’s Law went into effect.




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                     OHIO FIRST DISTRICT COURT OF APPEALS



                                       III. Conclusion

       {¶41} The legislature properly classified Mosley as a child-victim offender in

2003. Because he is being prosecuted for violation of his duties as a child-victim

offender, he should not now be able to now challenge the constitutionality of his

previous classification as a sexually oriented offender. And even if he were able to

bring such a challenge, it rightfully should fail because a rational basis supports the

legislative enactment. The majority sees both points differently, so I respectfully

dissent.



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




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