         [Cite as State v. Hodgkin, 2019-Ohio-1686.]
                 IN THE COURT OF APPEALS
             FIRST APPELLATE DISTRICT OF OHIO
                  HAMILTON COUNTY, OHIO



STATE OF OHIO,                                    :    APPEAL NO. C-170689
                                                       TRIAL NO. C-17CRB-14828
        Plaintiff-Appellee,                       :

  vs.                                             :      O P I N I O N.

JOHN R. HODGKIN,                                  :

    Defendant-Appellant.                          :




Criminal Appeal From: Hamilton County Municipal Court

Judgment Appealed From Is: Affirmed and Cause Remanded

Date of Judgment Entry on Appeal: May 3, 2019


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

Rubenstein & Thurman, L.P.A., and Scott A. Rubenstein, for Defendant-Appellant.
                     OHIO FIRST DISTRICT COURT OF APPEALS



ZAYAS, Judge.
       {¶1}     Following a bench trial, defendant-appellant John R. Hodgkin was

found guilty of sexual imposition, in violation of R.C. 2907.06(A)(1), and unlawful

restraint, in violation of R.C. 2905.03(A), both third-degree misdemeanors. Prior to

sentencing, Hodgkin challenged the constitutionality of the R.C. Chapter 2950 sex-

offender-registration statutes as applied to him.           The trial court rejected his

constitutional challenges, sentenced him, and classified him as a Tier I sex offender

under Ohio’s version of the Adam Walsh Act, requiring him to register annually for

15 years. Hodgkin has appealed. We affirm Hodgkin’s convictions and his Tier I

classification, but we remand this cause for the trial court to properly notify Hodgkin

of his sex-offender registration and verification duties.

       {¶2}     Hodgkin raises three assignments of error for our review, which we

will address in reverse order. Hodgkin’s third assignment of error alleges that his

convictions were based on insufficient evidence and against the manifest weight of

the evidence.

       {¶3}     When reviewing Hodgkin’s claim that his convictions were based on

insufficient evidence, we must review the evidence in the light most favorable to the

prosecution and determine whether any rational trier of fact could have found that

all the elements of the crimes had been proven beyond a reasonable doubt. See State

v. Thompkins, 78 Ohio St.3d 380, 386, 678 N.E.2d 541 (1997). In reviewing his

claims that his convictions were against the manifest weight of the evidence, we

weigh the evidence and all reasonable inferences, and consider the credibility of the

witnesses, to determine whether the trier of fact clearly lost its way and created such

a manifest miscarriage of justice that the convictions must be reversed. Id. at 387;

State v. Martin, 20 Ohio App.3d 172, 175, 485 N.E.2d 717 (1st Dist.1983). Issues

concerning the weight to be given the evidence and the credibility of the witnesses

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are primarily for the trier of fact. State v. DeHass, 10 Ohio St.2d 230, 227 N.E.2d

212 (1967), paragraph one of the syllabus; State v. Jeffries, 2018-Ohio-2160, 112

N.E.3d 417, ¶ 64 (1st Dist.).

       {¶4}    Hodgkin was convicted of sexual imposition, in violation of R.C.

2907.06(A)(1). R.C. 2907.06(A)(1) provides

       No person shall have sexual contact with another, not the spouse of the

       offender; cause another, not the spouse of the offender, to have sexual

       contact with the offender; or cause two or more other persons to have

       sexual contact when any of the following applies:

           (1) The offender knows that the sexual contact is offensive to the

           other person, or one of the other persons, or is reckless in that

           regard.

“ ‘Sexual contact’ means any touching of an erogenous zone of another, including

without limitation the thigh, genitals, buttock, pubic region, or, if the person is a

female, a breast, for the purpose of sexually arousing or gratifying either person.”

R.C. 2907.01(B).

       {¶5}    Hodgkin was also convicted of unlawful restraint, in violation of R.C.

2905.03(A), which states, “No person, without privilege to do so, shall knowingly

restrain another of the other person’s liberty.”

       {¶6}    The evidence presented at trial showed that Hodgkin was a Metro bus

driver. On March 13, 2017, the 17-year-old victim boarded Hodgkin’s bus to get to

her job. The victim and her friends previously had ridden with Hodgkin and had

“play fought” with him. The victim testified that she called her cousin because

Hodgkin was making her uncomfortable by looking at her in the rear-view mirror.

Eventually, all of the other passengers got off of the bus, and the victim was left alone

on the bus with Hodgkin.

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       {¶7}   Hodgkin pulled the bus over so that he could take a cigarette break.

The victim testified that she told him she was going to be late for work, but Hodgkin

said that they were early. After he finished his cigarette, Hodgkin asked the victim,

“You don’t want to play today?” The victim answered, “No.” Hodgkin then began to

tickle the victim. Initially, the victim was flat on her back, but she then “ended up on

the floor on the other side of the bench of the seats.” Hodgkin continued to tickle the

victim. He touched her stomach, neck, chest and inner thighs. He got on top of the

victim and would not let her up, even after the victim told him to stop and get off of

her. Hodgkin slapped the victim’s buttocks. He did not get up off of the victim until

she told him he was “the man.” Hodgkin then drove the victim to her stop, but he

would not open the bus door until the victim gave him her name and number. The

victim gave Hodgkin a fake name and number, and he opened the bus door. The

victim told her boss and then a teacher what had happened. A Metro bus camera

recorded the incident.

       {¶8}   While Hodgkin does not make any specific argument regarding his

unlawful-restraint conviction, we hold that there is sufficient evidence in the record

to support it. Hodgkin got on top of the victim and refused to let her up, even when

she told him to get off of her. He also refused to open the bus door so that the victim

could leave the bus. We hold that the trial court did not lose its way in convicting

Hodgkin of unlawful restraint.

       {¶9}   Regarding his sexual-imposition conviction, Hodgkin contends that

the sexual-contact element of sexual imposition was not supported by sufficient

evidence. He concedes that he touched the victim on her buttocks, chest, and inner

thigh, erogenous zones listed in the R.C. 2907.01(B) definition of sexual contact. But

Hodgkin argues that the evidence was insufficient to support an inference that the

purpose of his actions was sexual gratification or arousal. Hodgkin argues that the

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evidence supports an inference that all he wanted to do was “play fight” with the

victim, and that his actions were no more than an innocent attempt at “horseplay.”

       {¶10} In State v. Mack, 1st Dist. Hamilton No. C-050968, 2006-Ohio-6284,

¶ 9, this court stated,

       The Ohio Revised Code does not define sexual arousal or gratification.

       But the statutes contemplate any touching of the specified areas that a

       reasonable person would perceive as sexually stimulating or gratifying.

       Whether a touching is for the purpose of sexual gratification or arousal

       is “a question of fact to be inferred from the type, nature, and

       circumstances surrounding the contact.” While touching by itself is

       not sufficient for a conviction, the act of touching may constitute

       strong evidence of intent.

(Internal citations omitted.)

       {¶11} The Ninth Appellate District discussed the factfinder’s role in

determining whether the touching was for the purpose of sexual gratification or

arousal in State v. Cobb, 81 Ohio App.3d 179, 610 N.E.2d 1009 (9th Dist.1991),

stating,

       Thus, the proper method is to permit the trier of fact to infer from the

       evidence presented at trial whether the purpose of the defendant was

       sexual arousal or gratification by his contact with those areas of the

       body described in R.C. 2907.01. In making its decision the trier of fact

       may consider the type, nature and circumstances of the contact, along

       with the personality of the defendant. From these facts, the trier of

       facts may infer what the defendant’s motivation was in making the

       physical contact with the victim. If the trier of fact determines[] that

       the defendant was motivated by desires of sexual arousal or

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       gratification, and that the contact occurred, then the trier of fact may

       conclude that the object of the defendant’s motivation was achieved.

Cobb at 185; see In re Anderson, 116 Ohio App.3d 441, 444, 688 N.E.2d 545 (12th

Dist.1996).

       {¶12} In this case, Hodgkin was looking at the 17-year-old victim in the rear-

view mirror in a way that made her uncomfortable. He touched the victim on her

chest and inner thigh while “tickling” her. He also slapped her on the buttocks.

Hodgkin got on top of the victim and refused to get off of her until she called him

“the man.” He then refused to allow her to leave the bus until she had given him her

“name and number.” The evidence belies Hodgkin’s contention that he was merely

engaging in “horseplay” with the victim.

       {¶13} We hold that the evidence supported the inference that Hodgkin had

touched the victim for the purpose of sexual gratification or arousal. A rational trier

of fact, after viewing the evidence in the light most favorable to the prosecution,

could have found that the state had proved all the elements of sexual imposition

beyond a reasonable doubt. Further, after reviewing all the evidence, we cannot say

that the trial court clearly lost its way and created such a manifest miscarriage of

justice that we must reverse Hodgkin’s conviction for sexual imposition and order a

new trial. The third assignment of error is overruled.

       {¶14} Hodgkin’s second assignment of error assets that R.C. Chapter 2950’s

sex-offender-registration statutes are unconstitutional as applied to him because

requiring him to register as a Tier I sex offender constitutes cruel and unusual

punishment in violation of the Eighth Amendment to the United States Constitution

and Article I, Section 9, of the Ohio Constitution.       Hodgkin contends that his

mandatory classification as a Tier I sex offender, which requires him to register for 15

years and to annually verify his address, is grossly disproportionate to the nature of

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                     OHIO FIRST DISTRICT COURT OF APPEALS



the sexual-imposition offense and his character, which has the effect of shocking the

community’s sense of justice and, therefore, constitutes cruel and unusual

punishment. He argues that the relative seriousness of the offense, a third-degree

misdemeanor, and his lack of prior sex offenses render the burden of Tier I

registration and verification requirements so disproportionate as to shock the sense

of justice in the community or to shock a reasonable person.

       {¶15} In State v. Bradley, 1st Dist. Hamilton No. C-100833, 2011-Ohio-

6266, this court held that the imposition of Tier II registration requirements for a

conviction of unlawful sexual conduct with a minor did not constitute cruel and

unusual punishment. We stated,

       In determining whether a punishment is “cruel and unusual,”

       reviewing courts must give substantial deference to the “broad

       authority” that the legislature has to determine the “types and limits of

       punishments for crimes.” Generally, punishments that fall within the

       terms of a valid statute are not cruel and unusual. The question is

       whether, after deferring to the legislature’s authority to define offenses

       and set the punishment for them, and after giving the legislature’s

       determination the presumption of constitutionality to which it is

       entitled, the reviewing court can say that the penalty that the

       legislature has deemed appropriate is so disproportionate to the crime

       as to shock any reasonable person and the community’s sense of

       justice.

(Internal citations omitted.) Bradley at ¶ 10.

       {¶16} Bradley was cited by the Ohio Supreme Court in State v. Blankenship,

145 Ohio St.3d 221, 2015-Ohio-4624, 48 N.E.3d 516. In Blankenship, the Supreme

Court held, in a plurality opinion, that the imposition of Tier II sex-offender

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                     OHIO FIRST DISTRICT COURT OF APPEALS



registration requirements for fourth-degree-felony unlawful sexual conduct with a

minor was not so extreme as to be grossly disproportionate to the crime or shocking

to a reasonable person, and therefore, did not constitute cruel and unusual

punishment.

       {¶17} The Blankenship court stated that “reviewing courts should grant

substantial deference to the broad authority that legislatures possess in determining

the types and limits of punishments for crimes.”       Id. at ¶ 36, quoting State v.

Weitbrecht, 86 Ohio St.3d 368, 373, 715 N.E.2d 167 (1999). Further, the court noted

that “[t]he General Assembly has seen fit to impose registration sanctions in cases

involving sex offenses to protect the public,” and that the wisdom of such legislation

was for the legislature to decide. Blankenship at ¶ 36 and 37.

       {¶18} In determining the as-applied constitutionality of a penal statute, the

court must consider the following: “(1) the culpability of the offender in light of his

crime and characteristics; (2) the severity of the punishment; and (3) the penological

justification.” Blankenship at ¶ 22, citing Graham v. Florida, 560 U.S. 48, 67, 130

S.Ct. 2011, 176 L.Ed.2d 825 (2010).

       {¶19} In regards to Hodgkin’s culpability, as the Blankenship court

recognized that “the legislature has chosen to draw the line” by acknowledging the

special culpability of adults who commit certain sexually-oriented offenses, including

sexual imposition, and that these offenders are “deemed more culpable and

deserving of punishment.” Blankenship at ¶ 24. Hodgkin’s victim was a 17-year-old

girl that he held down and continued to touch, even when she told him to stop. We

conclude, based on the record, that Hodgkin was more culpable and deserving of

punishment. See id. at ¶ 24.

       {¶20} Regarding the severity of Hodgkin’s registration requirements, as a

Tier I sex offender he was required to register for 15 years and to annually verify his

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address.   This registration period is less severe than the 25-year registration

requirement approved by the Supreme Court in Blankenship. “Since the Court in

Blankenship determined that a registration period that is nearly twice as long as the

one imposed here is permissible under the Eighth Amendment, we can discern no

reason to conclude that [Hodgkin’s] 15-year registration period is so severe as to

reach the level of unconstitutionality.” State v. Conley, 9th Dist. Summit No. 27869,

2016-Ohio-5310, ¶ 13; see State v. Heiney 6th Dist. Lucas No. L-16-1042, 2018-Ohio-

3408, ¶ 178.

       {¶21} Finally, regarding the penological justification for Hodgkin’s

registration requirements, the Blankenship court noted that “the penological

grounds for imposing such requirements are still accepted in many quarters and are

justified in part based upon the perceived high rate of recidivism and resistance to

treatment among sex offenders.”       Blankenship at ¶ 30.     The imposition of a

registration period satisfies “the penological aim of reducing recidivism among sex

offenders.” Conley at ¶ 14, citing Blankenship.

       {¶22} Ohio courts have rejected cruel-and-unusual-as-applied challenges to

R.C. Chapter 2950’s tier-classification system. See Heiney (the imposition of Tier I

registration and verification requirements for gross sexual imposition does not

constitute cruel and unusual punishment); Conley (Tier I registration and

verification requirements are not cruel and unusual punishment for third-degree-

misdemeanor voyeurism); State v. Fisher, 4th Dist. Ross No. 16CA3553, 2017-Ohio-

7260 (imposing Tier III registration and verification requirements for sexual battery

does not constitute cruel and unusual punishment).

       {¶23} We hold that the Tier I sex-offender registration and verification

requirements imposed upon Hodgkin are not so extreme as to be grossly

disproportionate to his sexual-imposition crime or shocking to a reasonable person

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or to the community’s sense of justice; therefore, they are not unconstitutional as

applied to Hodgkin. The second assignment of error is overruled.

       {¶24} For his first assignment of error, Hodgkin contends, and the state

concedes, that the trial court failed to properly notify him of his registration and

verification duties as a Tier I sex offender. The trial court did not orally notify

Hodgkin of his registration requirements, and there is no notification form in the

record. Therefore, this cause must be remanded so that the trial court may properly

notify Hodgkin of his registration and verification requirements pursuant to R.C.

2950.03. The first assignment of error is sustained.

       {¶25} The judgment of the trial court is affirmed. The cause is remanded for

the trial court to properly notify Hodgkin of his registration and verification duties

pursuant to R.C. 2950.03.



                                             Judgment affirmed and cause remanded.

MOCK, P.J., and MYERS, J., concur.


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




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