[Cite as State v. Lloyd, 132 Ohio St.3d 135, 2012-Ohio-2015.]




             THE STATE OF OHIO, APPELLEE, v. LLOYD, APPELLANT.
          [Cite as State v. Lloyd, 132 Ohio St.3d 135, 2012-Ohio-2015.]
Criminal law—Sex offenders—R.C. 2950.04(A)(4)—Duty to register based on
        out-of-state conviction for sexually oriented offense—Offense of failure to
        register—Prosecution must prove that defendant had duty to register in
        state where offense was committed—conviction for failure to register
        reversed.
     (No. 2011-0212—Submitted December 6, 2011—Decided May 8, 2012.)
               APPEAL from the Court of Appeals for Holmes County,
                            No. 09 CA 12, 2010-Ohio-6562.
                                  __________________
        O’CONNOR, C.J.
        {¶ 1} In this appeal, we explain the analysis that a court must undertake
in determining (1) whether an out-of-state conviction is a sexually oriented
offense that triggers a duty to register in Ohio and (2) the sanction for failure to
register in Ohio based on a duty that arises from an out-of-state conviction. For
the reasons explained herein, we hold that the offense for which appellant Wesley
Lloyd was convicted in Texas, aggravated sexual assault, is a sexually oriented
offense under Ohio law because it is substantially equivalent to rape, a listed Ohio
offense. See R.C. 2950.01(A)(11). Because rape in Ohio is a first-degree felony,
a violation of Lloyd’s registration duties would also constitute a first-degree
felony. See R.C. 2950.99(A)(1)(a)(ii). Accordingly, we approve those portions
of the court of appeals’ opinion that reflect that holding.
        {¶ 2} But we must set aside Lloyd’s convictions because the state failed
to prove that at the time he moved to Ohio, Lloyd was under a duty to register in
                              SUPREME COURT OF OHIO




Texas as a result of his conviction for aggravated sexual assault, as required by
R.C. 2950.04(A)(4). We hold that the decision of the court of appeals to affirm
Lloyd’s convictions in the face of this plain error was improper and must be
reversed.
                       FACTS AND PROCEDURAL HISTORY
       {¶ 3} On December 8, 1995, Wesley Lloyd was convicted in Texas of
aggravated sexual assault and was sentenced to seven years’ imprisonment. In the
fall of 2005, Lloyd moved to Auglaize County, Ohio, and began registering as a
sexually oriented offender.
       {¶ 4} In 2008, Lloyd received notice from the Ohio Attorney General
that he was reclassified as a Tier III sex offender, which required increased
periodic registration. Lloyd continued registering. He last registered in Auglaize
County on May 19, 2008.
       {¶ 5} On June 2, 2008, Lloyd moved to Holmes County, Ohio. On June
12, 2008, Lloyd was arrested by Holmes County authorities pursuant to a warrant
for failure to register in Holmes County.
       {¶ 6} On April 7, 2009, a bench trial commenced on the following
charges: (1) failure to register with the Holmes County Sheriff within three days
of moving to Holmes County, in violation of R.C. 2950.04(E), (2) failure to
provide written notice to the Holmes County Sheriff of intent to reside in Holmes
County at least 20 days before moving, in violation of R.C. 2950.04(E), and (3)
failure to provide written notice to the Auglaize County Sheriff of intent to reside
in Holmes County at least 20 days before moving, in violation of R.C.
2950.05(F)(1).
       {¶ 7} Lloyd was convicted on all counts and was sentenced to three
years’ imprisonment on each count, to be served concurrently.




                                            2
                                   January Term, 2012




                               The Fifth District Litigation
        {¶ 8} On appeal, the Fifth District Court of Appeals vacated Lloyd’s
conviction on the charge of failure to provide 20 days’ notice to the Holmes
County Sheriff. State v. Lloyd, 5th Dist. No. 09 CA 12, 2010-Ohio-6562, at ¶ 18-
20. It reasoned that pursuant to our decision in State v. Bodyke, 126 Ohio St.3d
266, 2010-Ohio-2424, 933 N.E.2d 753, Lloyd was required to register in
accordance with Megan’s Law, not the Adam Walsh Act, and the duty to give
advance notice to the sheriff in the county to which one moves arises only under
the Adam Walsh Act.            The court of appeals affirmed the remaining two
convictions and reasoned, in part, that the Adam Walsh Act did not affect Lloyd’s
registration requirements under those provisions.1
        {¶ 9} In so doing, the Fifth District rejected Lloyd’s argument that his
convictions violated due process because he was not required to register as a sex
offender in Ohio. Id. at ¶ 21. The appellate court concluded that the Texas
offense of aggravated sexual assault is substantially equivalent to rape in Ohio
and, therefore, Lloyd was required to register. Id. at ¶ 35. The Fifth District also
rejected Lloyd’s argument that his convictions for first-degree felonies violated
due process because they, in fact, constituted third-degree felonies. Id. at ¶ 37.
Lloyd’s argument to the Fifth District was that, if anything, aggravated sexual
assault as defined in Texas constitutes sexual battery, a third-degree felony, if
committed in Ohio. Id.
        {¶ 10} Lloyd unsuccessfully attacked his convictions on numerous other
grounds. Importantly for purposes here, the Fifth District rejected Lloyd’s due
process argument that targeted the state’s failure to offer any evidence whatsoever
that Lloyd was under a duty to register in Texas at the time he moved to Ohio. Id.

1. Because we find that Lloyd’s convictions are infirm on unrelated grounds, we need not and do
not in any way decide the propriety of the court of appeals’ decision to affirm his convictions
under Megan’s Law when he was prosecuted under the Adam Walsh Act. That legal issue is
currently before us in 2011-1066, State v. Brunning, Eighth Dist. No. 95376, 2011-Ohio-1936.




                                              3
                              SUPREME COURT OF OHIO




at ¶ 85-86 and 89-91. The Fifth District held that other evidence—namely,
Lloyd’s testimony in his own defense, which came after the trial judge denied
Lloyd’s first Crim.R. 29 motion—was sufficient to prove that element. Id. at ¶ 86
and 91.
          {¶ 11} We accepted jurisdiction over Lloyd’s discretionary appeal. State
v. Lloyd, 128 Ohio St.3d 1481, 2011-Ohio-2055, 946 N.E.2d 239.
                               QUESTION PRESENTED
          {¶ 12} The sole proposition of law before us asserts: “A court should
conduct an elemental comparison of an out-of-state offense when determining 1)
whether the offense triggers the duty to register in Ohio under R.C. 2950.01 and
2) the punishment for failing to register in Ohio under R.C. 2950.99.” We will
address each prong in turn.
                                      ANALYSIS
                     Duty to Register in Ohio under R.C. 2950.01
          {¶ 13} In all prosecutions under Ohio’s sex-offender-registration laws, the
state must prove that the defendant had been convicted of a sexually oriented
offense that triggered a duty to register. Certain offenders who commit sexually
oriented offenses out of state are subject to registration in Ohio.             R.C.
2950.04(A)(4). An out-of-state conviction is a sexually oriented offense under
Ohio law if it is or was substantially equivalent to any of the Ohio offenses listed
in R.C. 2950.01(A)(1) through (10). R.C. 2950.01(A)(11).
          {¶ 14} The legislature did not explain the analysis that courts must
undertake in determining whether an out-of-state offense is “substantially
equivalent” to a listed Ohio offense. We must, therefore, determine what the
statute permits. In doing so, we are mindful that we must look to the statutory
language itself and the purpose to be accomplished by the statutory scheme.
Sutton v. Tomco Machining, Inc., 129 Ohio St.3d 153, 2011-Ohio-2723, 950
N.E.2d 938, at ¶ 12, citing Rice v. CertainTeed Corp., 84 Ohio St.3d 417, 419,




                                           4
                               January Term, 2012




704 N.E.2d 1217 (1999). First, we will discuss the federal modified-categorical
approach to analyzing prior convictions, which we find instructive.
                    The federal modified-categorical approach
       {¶ 15} In Taylor v. United States, 495 U.S. 575, 110 S.Ct. 2143, 109
L.Ed.2d 607 (1990), the United States Supreme Court explained the meaning of
the word “burglary” as it was used in a sentence-enhancement statute and
explained the analysis that federal courts must undertake in determining whether a
state conviction is a burglary that triggers the enhancement. Id. at 577-578 and
602. The federal criminal code, which prohibits the possession of firearms by
certain individuals, including felons, contains a separate sentence-enhancement
provision that is commonly known as the Armed Career Criminal Act (“ACCA”).
The ACCA provides for a mandatory minimum sentence of 15 years’
imprisonment for defendants found guilty of unlawful possession of a firearm if
they have three previous convictions of a violent felony. 18 U.S.C. 924(e)(1).
The undefined term “burglary” is listed in the relevant definition of “violent
felony.” 18 U.S.C. 924(e)(2)(B)(ii). The court recognized that Congress had
singled out the offense of burglary as an offense of violence because of its
inherent potential harm to persons.       Taylor at 588.   But burglary has many
definitions, including one at common law. Id. at 580 (explaining that “ ‘burglary’
has not been given a single accepted meaning by the state courts; the criminal
codes of the States define burglary in many different ways”).
       {¶ 16} The court characterized its task, in part, as discerning whether
Congress intended “burglary” to mean “whatever the State of the defendant’s
prior conviction defines as burglary, or whether it intended that some uniform
definition of burglary be applied.” Id.
       {¶ 17} The court looked to the evolution of the enhancement statute over
time and noted that the enhancement “always has embodied a categorical
approach to the designation of predicate offenses,” as evidenced by the original



                                          5
                             SUPREME COURT OF OHIO




provision’s inclusion of a definition of burglary.      Id.   Because amendments
carried forward the categorical approach, the court concluded that Congress had
intended to capture “all crimes having certain common characteristics * * *
regardless of how they were labeled by state law.” Id. at 589.
       {¶ 18} In so holding, the court rejected as implausible the argument that
Congress intended the meaning of “burglary” to depend on the definition adopted
by the state of the prior conviction because “[t]hat would mean that [the sentence
enhancement] would, or would not, [apply] * * * based on exactly the same
conduct, depending on whether the State of his prior conviction happened to call
that conduct ‘burglary.’ ” Id. at 590-591.
       {¶ 19} The court also rejected the defendant’s argument that the common-
law definition applies because it had been abandoned by most states and would,
therefore, result in an unnaturally narrow reading of the statute. Taylor, 495 U.S.
at 593-595, 110 S.Ct. 2143, 109 L.Ed.2d 607.              In doing so, the court
acknowledged that federal law requires sentencing provisions to be construed in
favor of the accused, but explained that “[t]his maxim of statutory construction
* * * cannot dictate an implausible interpretation of a statute, nor one at odds with
the generally accepted contemporary meaning of a term.” Id. at 596, citing Perrin
v. United States, 444 U.S. 37, 49, 100 S.Ct. 311, 62 L.Ed.2d 199 (1979), fn. 13.
The court concluded that Congress had intended for the generic definition of
burglary to apply. Id. at 598.
       {¶ 20} There remained the problem of applying the generic definition
when the state statute under which a defendant had been convicted varies from the
generic definition. Id. at 599. The court considered a strict elemental comparison
and noted that if the state statute is narrower than the generic view or the same as
the generic view with only minor variations in terminology, “there is no problem,
because the conviction necessarily implies that the defendant has been found
guilty of all the elements of generic burglary.” Id.




                                          6
                               January Term, 2012




       {¶ 21} Some state statutes, however, are broader than the generic view.
The court gave the example of a burglary statute that includes unlawful entry into
automobiles as well as buildings.     A court may look beyond the statutory
definition and rely on a limited portion of the record—the indictment, the
information, and the jury instructions—in a narrow class of cases where the
defendant’s previous conviction was necessarily based on conduct that falls
within the generic definition of burglary. Id. at 602. If, based on a review of
those documents, the court finds that the offense involved burglary of a building,
and the jury had to find entry into a building in order to convict, the sentence
enhancement would apply. Id.
       {¶ 22} Recognizing that predicate convictions stem not only from jury
trials but also from bench trials and guilty pleas, the court later explained that
Taylor did not purport to strictly limit sentencing courts to consideration of
charges and instructions. Shepard v. United States, 544 U.S. 13, 20, 125 S.Ct.
1254, 161 L.Ed.2d 205 (2005).       Instead, by limiting the evidence that the
sentencing court may consider, the Taylor court rejected the “factual” approach,
in which the sentencing court, in effect, conducts a “trial within a trial” to
determine whether the defendant committed generic burglary. Taylor, 495 U.S.
at 601, 110 S.Ct. 2143, 109 L.Ed.2d 607. By the same token, a sentencing court is
permitted to consider only facts necessarily proven by the prosecution or admitted
by the defendant in the underlying litigation. Shepard at 20. Accordingly, Taylor
and its progeny hold that, in determining which statutory phrase was the basis for
a predicate conviction, sentencing courts confronted with the ACCA enhancement
may consult charging documents, plea agreements, transcripts of plea colloquies,
findings of fact and conclusions of law from a bench trial, jury instructions, and
jury verdict forms, or some comparable part of the record. Johnson v. United
States, ___ U.S. ___, 130 S.Ct. 1265, 1273, 176 L.Ed.2d 1 (2010).




                                        7
                              SUPREME COURT OF OHIO




          {¶ 23} This approach, which allows a court to go beyond the mere fact of
conviction in order to determine whether the elements of the predicate offense are
present, has become known as the modified categorical approach. See, e.g.,
Gonzales v. Duenas-Alvarez, 549 U.S. 183, 187, 127 S.Ct. 815, 166 L.Ed.2d 683
(2007).
          {¶ 24} With that framework in mind, we turn our attention to the Ohio
statute at issue here.
                          Statutory Purpose and Language
          {¶ 25} The General Assembly purportedly enacted the sex-offender
registration laws for the purpose of protecting the safety and general welfare of
the public. R.C. 2950.02(B); State v. Cook, 83 Ohio St.3d 404, 417, 700 N.E.2d
570 (1998). In order to accomplish that goal, the General Assembly identified
certain Ohio offenses, the commission of which it concluded tends to indicate the
likelihood of future dangerousness, and required persons convicted of those
offenses to register their whereabouts so that the community can be made aware
of their presence. Id.
          {¶ 26} To that end, R.C. 2950.01(A)(1) provides a list of 11 Ohio criminal
statutes, including R.C. 2907.02 (rape), and provides that convictions under those
statutes are sexually oriented offenses. The statute also lists other Ohio criminal
statutes that qualify as sexually oriented offenses only if certain aggravating
factors are present, such as sexual motivation. See, e.g., R.C. 2950.01(A)(4)
(providing that felonious assault under R.C. 2903.11 is a sexually oriented offense
when it is committed with a sexual motivation). Finally, the statute defines some
out-of-state convictions as sexually oriented offenses under Ohio law.
Specifically, R.C. 2950.01(A)(11) provides:


                 A violation of any former law of this state, any existing or
          former municipal ordinance or law of another state or the United




                                          8
                                 January Term, 2012




       States, any existing or former law applicable in a military court or
       in an Indian tribal court, or any existing or former law of any
       nation other than the United States that is or was substantially
       equivalent to any offense listed in division (A)(1), (2), (3), (4), (5),
       (6), (7), (8), (9), or (10) of this section.


(Emphasis added.)
       {¶ 27} In defining out-of-state sexually oriented offenses by their
substantial equivalence to the Ohio listed offenses, the General Assembly
identified a uniform category of offenses that are sexually oriented offenses.
Unlike the Taylor court, then, we need not struggle with defining the relevant
statutory terms because that has been done by the General Assembly. See R.C.
2950.01(A)(1) through (10).
       {¶ 28} Another significant distinction between the Taylor court’s task and
ours is that the ACCA sentence enhancement tolerated only “minor variations”
between the relevant definitions.          In contrast, the Ohio statutory phrase
“substantially equivalent” expressly leaves room for potential distinctions
between the out-of-state statute and the relevant Ohio statute. Miller v. Cordray,
184 Ohio App.3d 754, 2009-Ohio-3617, 922 N.E.2d 973, ¶ 15 (10th Dist.); Core
v. State, 191 Ohio App.3d 651, 2010-Ohio-6292, 947 N.E.2d 250, ¶ 13 (10th
Dist.). “Equivalent” means “like in signification or import.” Webster’s Third New
International Dictionary 769 (1986). The General Assembly chose to modify
“equivalent” with “substantially,” which means “being that specified to a large
degree.” Id. at 2280. It is similarly defined as “ ‘being largely but not wholly that
which is specified.’ ” Swan Creek Twp. v. Wylie & Sons Landscaping, 168 Ohio
App.3d 206, 2006-Ohio-584, 859 N.E.2d 566, ¶ 28 (6th Dist.), quoting Merriam
Webster’s Collegiate Dictionary 1174 (10th Ed.1996). “Substantially” is the
operative word.



                                            9
                             SUPREME COURT OF OHIO




                               Lloyd’s proposed test
        {¶ 29} Lloyd contends that a court is always limited to comparing the
elements of the out-of-state offense and the listed Ohio offenses in determining
whether the out-of-state offense is “substantially equivalent” to a listed Ohio
offense. He argues that a court is permitted to make a finding of substantial
equivalence when the statutes are differently worded only if they describe the
same conduct and the same mental state.
        {¶ 30} The analysis suggested by Lloyd would permit a court to conclude
that an out-of-state criminal conviction is substantially equivalent to a listed Ohio
offense when the out-of-state statute is narrower than the relevant Ohio criminal
provision or when the out-of-state statute is similar to Ohio’s with only minor
variations. See Taylor, 495 U.S. at 599, 110 S.Ct. 2143, 109 L.Ed.2d 607. Those
results would certainly be justified by the plain and ordinary meaning of
“substantially equivalent.” But this same approach would also require a court to
conclude that an out-of-state conviction is not substantially equivalent to a listed
Ohio offense when the out-of-state statute is broader. See id. The conclusory
nature of the latter result is inconsistent with the plain and ordinary meaning of
the statutory phrase “substantially equivalent.” That result would also thwart the
legislature’s intent because it would prevent Ohio law from reaching some of the
offenses identified by the General Assembly only because of idiosyncrasies in the
criminal codes of foreign jurisdictions. We, therefore, reject Lloyd’s proposed
test.
                           Substantial-Equivalence Test
        {¶ 31} We find the reasoning of Taylor to be apt. We conclude that in
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 the record of conviction. If the out-of-state statute




                                         10
                               January Term, 2012




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, courts are permitted to consult
a limited range of material contained in the record, including charging documents,
plea agreements, transcripts of 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.
                            Lloyd’s Texas Conviction
       {¶ 32} Lloyd’s Texas conviction for aggravated sexual assault is
substantially equivalent to rape in Ohio under R.C. 2907.02(A)(2), an offense
listed in R.C. 2950.01(A)(1). R.C. 2907.02(A)(2) provides: “No person shall
engage in sexual conduct with another when the offender purposely compels the
other person to submit by force or threat of force.”        In Texas, Lloyd was
convicted of aggravated sexual assault in violation of Texas Penal Code
22.021(a)(1), which provides that a person commits an offense if the person:


               (A) intentionally or knowingly:
               (i) causes the penetration of the anus or sexual organ of
       another person by any means, without that person’s consent;
               (ii) causes the penetration of the mouth of another person
       by the sexual organ of the actor, without that person’s consent; or
               (iii) causes the sexual organ of another person, without that
       person’s consent, to contact or penetrate the mouth, anus, or sexual
       organ of another person, including the actor.




                                         11
                                  SUPREME COURT OF OHIO




        {¶ 33} Lloyd concedes that the Texas statute is substantially equivalent to
Ohio’s rape statute with one exception—the requisite mental states. The Texas
statute criminalizes certain sexual conduct when it is committed intentionally or
knowingly. Id. at (a)(1)(A). Ohio’s rape statute requires proof that the prohibited
acts were committed purposely. R.C. 2907.02(A)(2). We consult the portions of
the record offered into evidence to determine which mental state was the basis for
Lloyd’s Texas conviction.2
        {¶ 34} The record contains certified copies of the indictment, jury
instructions, and judgment entry from Lloyd’s Texas case.                       The two-count
indictment charged aggravated sexual assault and sexual assault. The aggravated-
sexual-assault count charged that Lloyd did


        intentionally and knowingly sexually assault [the victim]3 by
        causing his male sexual organ to penetrate the mouth of [the
        victim], without [her] consent, and * * * compelled [her] to submit
        and participate by the use of physical force and violence, and * * *
        did * * * intentionally and knowingly by acts and words place [the
        victim] in fear that serious bodily injury and death would be
        imminently inflicted on [her].


(Footnote added.)


2. The state argues in the alternative that the offenses are substantially equivalent on their face
because even “knowingly” is, as a practical matter, the same as “purposely.” It queries, “Under
what circumstance could Lloyd have satisfied all the elements of Aggravated Sexual Assault
knowingly and not also have assaulted his victim purposely?” Lloyd offers his answer to that
question in his reply brief. He contends that the distinction between knowingly and purposely has
been carefully drawn in the Ohio Revised Code, and the two terms are not meant to be used
interchangeably. That issue, raised and argued in the alternative by the parties, is outside the
scope of this appeal.

3. The indictment refers to the victim as “95PSEUJLK.”




                                                12
                                January Term, 2012




        {¶ 35} That same count further charged, in almost identical language, that
Lloyd intentionally and knowingly sexually assaulted the victim by causing his
male sexual organ to penetrate the female sexual organ of the victim.
        {¶ 36} Lloyd argues that the jury instructions “ordered the jury to convict
Mr. Lloyd of aggravated sexual assault” if it “found that he acted ‘knowingly.’ ”
That statement is correct, but incomplete. The jury was instructed that it was
permitted to find Lloyd guilty if it concluded that he either intentionally or
knowingly committed the prohibited acts. The court explained to the jury that
“[a] person acts intentionally, or with intent, with respect to the nature of his
conduct when it is his conscious objective or desire to engage in the conduct.”
The court further explained that “[a] person acts knowingly or with knowledge,
with respect to a result of his conduct when he is aware that his conduct is
reasonably certain to cause the result.”
        {¶ 37} The judgment entry reflects that Lloyd was convicted of both
intentionally and knowingly committing the prohibited acts because the jury
verdict was “guilty of Aggravated Sexual Assault as charged in Count One of the
indictment.”   (Emphasis added.)      That verdict was not prohibited under the
instructions or the law.
        {¶ 38} For these reasons, we hold that the indictment, jury instructions,
and judgment entry demonstrate that Lloyd was convicted of intentionally and
knowingly committing aggravated sexual assault. Because, as Lloyd concedes,
“intentionally” is substantially equivalent to “purposely,” his Texas conviction
was for an offense that is substantially equivalent to rape under R.C.
2907.02(A)(2). Consequently, Lloyd was convicted of an out-of-state offense that
is a sexually oriented offense in Ohio. We turn now to the second prong of the
proposition before us today, i.e., determining the sanction for failing to register in
Ohio.




                                           13
                            SUPREME COURT OF OHIO




           Sanction for Failing to Register in Ohio under R.C. 2950.99
        {¶ 39} In R.C. 2950.99, the General Assembly established the punishment
for violations of the sex-offender-registration laws by providing for classification
of the offenses. See generally R.C. 2950.99(A)(1) (providing that violations of
the registration laws are felonies of the first, second, third, or fourth degree,
depending on certain factors).      Classification of the registration offense is
primarily dependent on the classification of the underlying sex offense. See id.
        {¶ 40} Lloyd contends that, in order to determine the classification of the
underlying sex offense, a court must conduct a second elemental comparison.
This second comparison, Lloyd suggests, involves examining the Ohio criminal
code in order to determine whether there exists an Ohio offense so closely aligned
with the Texas offense that the same act or acts, committed in Ohio, would
constitute an offense under Ohio law. Lloyd suggests that this second elemental
comparison involves a more stringent standard than the substantial-equivalence
test and requires the elements to be more precisely aligned. For that reason,
Lloyd concludes that even if his Texas conviction is substantially equivalent to
rape, it would nonetheless constitute misdemeanor menacing if committed in
Ohio. For that reason, Lloyd turns to R.C. 2950.99(A)(1)(a)(iii), which provides,
“If the most serious sexually oriented offense * * * that was the basis of the
registration * * * requirement * * * is a * * * misdemeanor * * * or a comparable
category of offense committed in another jurisdiction, the offender is guilty of a
felony of the fourth degree,” and concludes that his convictions for failure to
register are, by operation of law, fourth-degree felonies. The fact that menacing is
not a sexually oriented offense in Ohio does not dissuade Lloyd of the correctness
of his position.
        {¶ 41} The state counters that a second elemental test is not required.
Accordingly, the state turns to R.C. 2950.99(A)(1)(a)(ii), which provides, “If the
most serious sexually oriented offense * * * that was the basis of the registration




                                        14
                                January Term, 2012




* * * requirement * * * is a felony of the first, second, third, or fourth degree
* * * or a comparable category of offense committed in another jurisdiction, the
offender is guilty of a felony of the same degree * * *.” The state therefore
concludes that any violation of Lloyd’s registration duties would be a first-degree
felony because rape, the Ohio offense that is substantially equivalent to Lloyd’s
Texas conviction, is a first-degree felony. As used in these subsections,


       “comparable     category     of   offense    committed    in   another
       jurisdiction” means a sexually oriented offense * * * that was the
       basis of the registration * * * requirement * * * that is a violation
       of an existing or former law of another state * * * and that, if it had
       been committed in this state, would constitute or would have
       constituted * * * a felony of the first, second, third, or fourth
       degree for purposes of division (A)(1)(a)(ii) of this section [and] a
       felony of the fifth degree or a misdemeanor for purposes of
       division (A)(1)(a)(iii) of this section * * *.


R.C. 2950.99(A)(3).
       {¶ 42} Nowhere in this statutory scheme do we perceive the requirement
that a court engage in a second elemental test to determine the “comparable” Ohio
offense, as Lloyd suggests.       Instead, the penalty provision builds upon the
registration provisions. The General Assembly defined “comparable category of
offense” by reference to the sexually oriented offense that was the basis of the
registration requirement and that is a violation of an existing or former law of
another state. Id. This is plainly a reference to R.C. 2950.01(A)(11) (defining
sexually oriented offense as an out-of-state offense that is or was substantially
equivalent to a listed Ohio offense).




                                          15
                               SUPREME COURT OF OHIO




          {¶ 43} As the state succinctly puts it, “[a]n out-of-state violation can only
be a sexually oriented offense and a basis for registration in this state if it is
‘substantially equivalent’ to [a listed] Ohio offense * * *.” The balance of the
definition requires a court to determine the classification of the offense that would
apply if the out-of-state offense had been committed in Ohio.             In defining
“comparable category of offense,” the legislature not only presumed that the
substantial-equivalence determination had already been made and the duty to
register had already been proven, it incorporated the substantial-equivalence
analysis into the definition. We conclude that in doing so, the General Assembly
requires courts to identify the level of offense of the listed Ohio crime that is or
was the substantial equivalent of the out-of-state conviction in order to determine
the classification of the registration violation that is based on an out-of-state
conviction.     Because rape in Ohio is a first-degree felony, any violation of
Lloyd’s registration duties is also a first-degree felony.                  See R.C.
2950.99(A)(1)(a)(ii).
          {¶ 44} Having addressed the two issues directly before us, we turn our
attention to a deficiency in the state’s proof that is readily apparent from the
record.
                     Duty to Register in Ohio under R.C. 2950.04
          {¶ 45} Ohio’s sex-offender-registration laws are applicable to out-of-state
offenders by operation of R.C. 2950.04(A)(4), which provides:


                 Regardless of when the sexually oriented offense was
          committed, each person who is convicted, pleads guilty, or is
          adjudicated a delinquent child in a court in another state * * * for
          committing a sexually oriented offense shall comply with the
          following registration requirements if, at the time the offender
          * * * moves to and resides in this state * * *, the offender * * *




                                           16
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        has a duty to register as a sex offender * * * under the law of that
        other jurisdiction as a result of the conviction [or] guilty plea * * *.


        {¶ 46} Thus, the General Assembly imposes a duty to register on a person
who has been convicted of a sexually oriented offense in another jurisdiction only
if at the time he moves to Ohio, he has a duty to register in the other jurisdiction
as a consequence of the conviction. Id. Accordingly, the state not only had the
burden to prove that Lloyd’s aggravated-sexual-assault conviction is a sexually
oriented offense under Ohio law, but it was also required to prove that at the time
Lloyd moved to Ohio, he was under a duty to register in Texas as a result of the
1995 conviction. In this regard, the state failed to do what was required of it.
                     Proof of Lloyd’s Duty to Register in Texas
        {¶ 47} In its case-in-chief, the state failed to produce any evidence
whatsoever that at the time Lloyd moved to Ohio, he was under a duty to register
in Texas as a result of the conviction in that state. The state failed to produce any
evidence that Lloyd had registered as a sex offender in Texas or that he had been
given notice by any Texas authority that he was under a duty to register in Texas.
It failed to produce any judgment entry that reflected that Lloyd had been
adjudicated a sex offender in Texas. And it failed to call any witness to testify as
to how Lloyd’s sex-offender status was established in Ohio. It failed to make any
legal argument about the consequences of Lloyd’s aggravated-sexual-assault
conviction in Texas.      It failed in any way to establish Texas’s sex-offender
registration law or its effect, if any, on Lloyd.
        {¶ 48} In holding that the evidence was sufficient to establish that Lloyd
had a duty to register in Texas, the Fifth District agreed that the state failed to
offer any proof at all as to this element. Instead, it relied on Lloyd’s testimony in
his own defense, which came after the trial judge denied Lloyd’s first Crim.R. 29




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motion.4 On direct examination, Lloyd acknowledged that he had been convicted
of aggravated sexual assault in Texas. He explained that he had moved to Texas
because of military duties, and, a few months after he was released from prison in
Texas, he moved to Ohio, the state in which he was born and which he considers
home. Before he moved to Ohio, he contacted the Auglaize County Sheriff’s
Office, which classified him as a sexually oriented offender. Lloyd registered as
instructed.
        {¶ 49} In concluding that Lloyd testified that he had a duty to register in
Texas as a result of his 1995 conviction, the Fifth District relied on the following
testimony:


                 Q. So, when were you released from prison?
                 A. In I believe it was July of 2005 I believe.
                 Q. And when did you move to Ohio?
                 A. I believe it was October or November of 2005.
                 Q. And why did you come here?
                 A. I was born in Ohio. The only reason I was really in
        Texas was because of my military duties; so this is kind of home
        for me Ohio is.
                 Q. And did you go through certain procedures to establish
        your duty to register before you left Texas?
                 A. Yes. I had to get a form. They give you a form to take
        to the next place that you register and stuff. So I got the form and


4. Lloyd’s otherwise extensive motion for acquittal did not expressly challenge the state’s failure
to offer any evidence on this element. We assume, without deciding, that the court of appeals
properly considered Lloyd’s testimony in deciding the sufficiency of the evidence. See State v.
Miley, 114 Ohio App.3d 738, 742, 684 N.E.2d 102 (4th Dist.1996), citing Helmick v. Republic-
Franklin Ins. Co., 39 Ohio St.3d 71, 73, 529 N.E.2d 464 (1988) (holding that, if a motion for
acquittal is properly renewed, an appellate court reviewing the original motion examines only the
portion of the record toward which the original motion was directed).




                                                18
                                January Term, 2012




       then when I moved to Auglaize County I had to take that form in
       the sheriff’s office there and show them the form and they had the
       same issue that the codes weren’t comparable, so Texas and the
       officer there talked over the phone and everything else and they
       said “We don’t have this type of * * *.” In Texas I was * * *.
               Q. To cut to the chase.
               A. Okay.
               Q. You were classified a sexually oriented offender.
               A. Sexually oriented offender because [sic].


       {¶ 50} Contrary to the Fifth District’s characterization of this passage, it is
apparent to us that Lloyd’s testimony did not constitute sufficient evidence to
prove that at the time he moved to Ohio, he was under a duty to register in Texas
as a result of the 1995 conviction.
       {¶ 51} Although Lloyd discussed obtaining a form, he did not explain
what the form was or where he got it. He testified as to when he got it—that is,
before he left Texas. But he did not testify that he obtained it from Texas
authorities. His testimony does not confirm that the form was in any way related
to the aggravated-sexual-assault conviction. Moreover, Lloyd testified that there
was some kind of confusion when Auglaize County determined his sex-offender
status. He testified that an officer in Texas told someone from the Auglaize
County Sheriff’s Office that “We don’t have this type of * * *.” Lloyd continued,
“In Texas, I was * * *.” Lloyd could have easily finished that sentence by saying,
“not under a duty to register.”          Rather than acknowledge these obvious
ambiguities as we are required to do, the dissent would employ clairvoyance to
supplement the record.
       {¶ 52} In an abundance of caution, Lloyd may very well have notified
Ohio authorities of his Texas conviction despite not having a duty to register in



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Texas. The state did not take the opportunity—even on cross-examination—to
develop this issue. The dissent quotes one word, “yes,” from Lloyd’s testimony
out of context and would hold that it makes the state’s case. Lloyd’s testimony,
the only evidence on this issue, was that the Auglaize County Sheriff was
confused about whether or how to classify Lloyd.           The courts cannot make
inference upon inference.
       {¶ 53} The dissent also seeks to relieve the state of its burden to prove
that Lloyd had a duty to register merely because Lloyd registered as instructed.
Fundamentally, the dissent assumes that the Auglaize County Sheriff’s
determination of Lloyd’s sex-offender status was legally and factually correct.
That assumption is unreasonable, especially on this record.
       {¶ 54} The irregularities in the Auglaize County Sheriff’s employees’
handling of Lloyd’s registration are well documented. One corrections officer
testified that, as a matter of practice, the Auglaize County Sheriff’s Office would
sometimes agree to permit offenders to update the registry late, thereby arguably
waiving the deadline. But it is not at all clear if Ohio law permits such a waiver.
Also, the testimony of other officers revealed that none of the Auglaize County
employees in charge of sex-offender registration were properly trained on how to
certify the registration forms. Tellingly, that practice was not corrected until after
Lloyd was charged.
       {¶ 55} Finally, the Auglaize County officer working with Lloyd in his
attempts to transfer his registration readily admitted under oath that he (the
officer) did not know how the law works when a registrant cannot, as was the case
here, supply a change of address 20 days in advance. The applicable procedure is
prominently set out in Ohio’s registration laws. R.C. 2950.05(G)(1). On the day
that Lloyd moved to Holmes County, he phoned the Auglaize County Sheriff’s
Office, gave his new address to an officer there, and told him that he intended to
appear in Holmes County to update the registry.          Focusing on quirks in the




                                         20
                                 January Term, 2012




computer system, that officer unequivocally told Lloyd that it was not possible to
register in Holmes County until he returned to Auglaize County to update the
computer, thereby dissuading Lloyd from making a personal appearance in
Holmes County. The seven law-enforcement officers who testified on behalf of
the state could not agree—even at the time of trial—whether Lloyd should have
been able to register in Holmes County without first returning to Auglaize
County. Meanwhile, officials from both counties independently informed the
courts that neither would have pursued prosecution if Lloyd had appeared in
Holmes County to register, even if he had done so after the deadline and without
first giving notice.
          {¶ 56} This case highlights the reasons why a court cannot assume that a
defendant is under a duty to register merely because law enforcement claims that
he is. After all, the courts are still the independent venue for sorting out law
enforcement’s allegations, on the basis of actual proof.
          {¶ 57} Lloyd’s convictions are, therefore, vacated.
                                    CONCLUSION
          {¶ 58} Lloyd’s Texas conviction for aggravated sexual assault is a
sexually oriented offense in Ohio because it is substantially equivalent to rape, a
listed Ohio offense. Because rape in Ohio is a first-degree felony, violation of
Lloyd’s registration duties would also constitute a first-degree felony.
Accordingly, we approve those portions of the court of appeals’ opinion. But we
must set aside Lloyd’s convictions because the state failed to prove that Lloyd
was under a duty to register in Texas as a result of his 1995 conviction when he
moved to Ohio, as it was required to do.
                                                                Judgment reversed.
      PFEIFER, LUNDBERG STRATTON, LANZINGER, CUPP, and MCGEE BROWN, JJ.,
concur.
      O’DONNELL, J., dissents.



                                           21
                             SUPREME COURT OF OHIO




                               __________________
       O’DONNELL, J., dissenting.
       {¶ 59} Respectfully, I dissent.
       {¶ 60} The issue accepted for review in this case concerns whether the
Texas offense of aggravated sexual assault is substantially equivalent to the crime
of rape as defined in Ohio. I concur with the majority’s determination that these
offenses are equivalent.
       {¶ 61} This court did not accept Lloyd’s fourth proposition of law that
“[t]he State failed to prove that Mr. Lloyd had a duty to register under Megan’s
Law”; thus, any challenge to the sufficiency of the evidence supporting his
convictions is not properly before the court.
       {¶ 62} On direct examination, Lloyd admitted that he had a duty to
register in Texas and that duty triggered a duty to register in Ohio when he moved
to this state. When asked by his attorney, “Did you go through certain procedures
to establish your duty to register before you left Texas?” Lloyd answered, “Yes.”
Moreover, he testified that he had been classified as a sexually oriented offender
on moving to this state, which meant that he had a duty to register once a year for
ten years. Thus, Lloyd’s own admissions demonstrate his knowledge of his duty
to register as a sex offender in Ohio.
       {¶ 63} Further, Lloyd’s own testimony establishes that he violated the
notice and registration requirements imposed on sex offenders. He admitted that
he had mailed his letter to the Auglaize County Sheriff less than 20 days prior to
his move to Holmes County. And although he called the Holmes County Sheriff
on the day of his move, he failed to appear in person and register in Holmes
County until more than a week after he had relocated there.
       {¶ 64} Accordingly, because the record supports the findings that Lloyd
failed to provide 20 days’ notice before moving from Auglaize County and failed




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                               January Term, 2012




to timely register in Holmes County, I would affirm the judgment of the appellate
court.
                              __________________
         Steve Knowling, Holmes County Prosecuting Attorney, and Sean Mathew
Warner, Assistant Prosecuting Attorney, for appellee.
         Timothy Young, Ohio Public Defender, and Stephen P. Hardwick,
Assistant Public Defender, for appellant.
                           ______________________




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