[Cite as State v. Moore, 2013-Ohio-5009.]


                                       COURT OF APPEALS
                                    RICHLAND COUNTY, OHIO
                                   FIFTH APPELLATE DISTRICT


STATE OF OHIO                               :       JUDGES:
                                            :
                                            :       Hon. W. Scott Gwin, P.J.
        Plaintiff - Appellee                :       Hon. John W. Wise, J.
                                            :       Hon. Craig R. Baldwin, J.
                                            :
-vs-                                        :
                                            :
BRIAN W. MOORE                              :       Case No. 13CA10
                                            :
                                            :
        Defendant - Appellant               :       OPINION



CHARACTER OF PROCEEDING:                            Appeal from the Richland County
                                                    Court of Common Pleas, Case No.
                                                    12-CR-795D




JUDGMENT:                                           Affirmed



DATE OF JUDGMENT:                                   November 7, 2013



APPEARANCES:

For Plaintiff-Appellee                              For Defendant-Appellant

JAMES J. MAYER, JR.                                 RANDALL E. FRY
Prosecuting Attorney                                10 West Newlon Place
                                                    Mansfield, OH 44902
By: JILL M. COCHRAN
Assistant Prosecuting Attorney
38 South Park Street
Mansfield, OH 44902
Richland County, Case No. 12CA10                                                             2

Baldwin, J.

      {¶1}    Defendant-appellant Brian Moore appeals his conviction and sentence

from the Richland County Court of Common Pleas on one count of failure of a sexually

oriented offender to notify of change of address. Plaintiff-appellee is the State of Ohio.

                          STATEMENT OF THE FACTS AND CASE

      {¶2}    On November 13, 2012, the Richland County Grand Jury indicted

appellant on one count of failure of a sexually oriented offender to notify of change of

address in violation of R.C. 2950.05(E)(1), a felony of the third degree. At his

arraignment on November 20, 2012, appellant entered a plea of not guilty to the charge.

      {¶3}    A jury trial was held on January 10, 2013. The following testimony was

adduced at trial.

      {¶4}    Pursuant to a Judgment Entry filed on August 22, 2001 in Huron County,

appellant, who was found to be a habitual sex offender, was required to verify his

residence address in person at the County Sheriff’s Office once a year for twenty years.

He also was required to notify the Sheriff with whom he had most recently registered of

any change of address at least seven days prior to any change of address.

      {¶5}    Pursuant to a Sentencing Entry filed in Richland County Case No. 2008-

CR-0606D, appellant, who had been convicted of failure to provide change of address,

was ordered to advise his Probation Officer and the Sheriff of any address change.

Subsequently, appellant, in 2011, was convicted in Richland County Case No. 2011-

CR-73D of failure to notify of change of address after pleading guilty.

      {¶6}    Connie Walls, who is in charge of registering sex offenders for the

Richland County Sheriff’s Office, testified that appellant came into their office after
Richland County, Case No. 12CA10                                                       3


moving into Richland County from Huron County where he was originally registered.

According to Walls, appellant came into her office on July 16, 2012 and registered his

expected address, which was at 34 West Main Street in Shiloh, Ohio. The form that

appellant signed listed his specific registration requirements.

      {¶7}    On August 14, 2012, appellant personally appeared in the Richland

County Sheriff’s Office to notify that he had left his prior address and was homeless.

The form appellant signed on such date indicated that he expected to be homeless in

Shiloh, Ohio. The form stated that appellant was required to register in person no later

than November 15, 2012 with the Richland County Sheriff’s Office.         The form also

contained a handwritten note from Walls informing appellant that he was to report to the

Sheriff’s Office by August 22, 2012 or sooner if a residence was established. Appellant’s

initials are by the notation. Wall testified that she informed appellant that he was

required to be present at the Sheriff’s Office in person and that appellant did not give

her any reason why he would be unable to comply.

      {¶8}    Wall testified that on August 22, 2012, appellant did not appear. She

stated that on such date, she had received a message from appellant stating that he

was going to be having surgery and could not come in. Appellant left a second message

for Walls on August 24, 2012 stating that he was going to be moving to 3 DeWeese

Place, Apartment A in Mansfield, Ohio. According to Walls, appellant never appeared in

person from August 22, 2012 through October 2, 2012, never left her any other

messages and did not contact her by phone again. He also never registered an address

on 705 Xenia Avenue in Dayton, Ohio and never registered a 1995 black Chevy Lumina

with the Richland County Sheriff’s Office.
Richland County, Case No. 12CA10                                                          4


      {¶9}    At the trial, Walls testified that she received a telephone call from Bill

Spognardi who was renting or going to rent an apartment at 3 DeWeese Place to

appellant. Spognardi was concerned about whether or not appellant had been

complying with his registration requirements. Walls testified that Sporgnardi left a

message for her on September 11, 2012 indicating that he was probably going to be

evicting appellant because he saw officers checking appellant’s whereabouts and was

concerned that appellant was not in compliance with his reporting requirements.

Spognardi told Walls that he had discussed the matter with appellant.

      {¶10}   At trial, Jennifer Godsey, a police officer with the City of Dayton, testified

that, on October 2, 2012, she was patrolling in uniform in a marked cruiser when she

came into contact with a 1995 black Chevy Lumina. The vehicle had been listed as

stolen. Officer Godsey testified that appellant was the driver of the vehicle and that

there were two passengers, one a woman and one a man. She testified that she was

able to ascertain where the vehicle had come from after locating the vehicle in an alley.

Officer Godsey testified that she learned that appellant had been selling scrap metal

with a female companion in Dayton, Ohio and that a video of the sale showed that

appellant did not have any difficulty lifting scrap or bending over.

      {¶11}   Officer Harry Dilley of the Dayton Police Department testified that on

October 2, 2012, he was checking nuisance abated properties on Xenia Avenue in

Dayton with his partner. He went into 705 Xenia and heard a noise upstairs. When

Officer Dilley and his partner went upstairs to check, he found one room with a mattress

covered by a sheet in the middle of the floor. After opening the closet door in the room,

the Officer found appellant and a woman inside crouching inside the back of the closet.
Richland County, Case No. 12CA10                                                        5


Upon searching appellant, the Officer located the key to the Lumina. When asked, he

did not know how long appellant had been at the 705 Xenia address.

      {¶12}   The next witness to testify was Deputy Rich Eichinger of the Richland

County Sheriff’s Office who testified that he was familiar with appellant. Deputy

Eichinger testified that on September 5, 2012, at the request of Connie Walls, he drove

by the DeWeese Place address with U.S. Federal Marshall Ross Wilbur. He testified

that upon arriving, he observed appellant walking southbound down DeWeese and then

walk into 3 DeWeese. Appellant did not appear to have any difficulty walking. U.S.

Marshall Wilbur testified that he had been shown a photograph of appellant and that he

observed a man who he believed was appellant walk up the street and enter a

residence at 3 DeWeese.

      {¶13}   Appellant’s Parole Officer, Brian Houseworth, testified that he last saw

appellant on August 14, 2012 and last spoke with him on August 23, 2012. He testified

that appellant indicated that he was going to be having hernia surgery.

      {¶14}   At the conclusion of the evidence and the end of deliberations, the jury, on

January 10, 2012, found appellant guilty of failure to give notice of a change of his

residence address. As memorialized in a Sentencing Entry filed on January 11, 2013,

appellant was sentenced to three (3) years in prison.

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

      {¶16}   THE VERDICT OF GUILTY AGAINST THE DEFENDANT-APPELLANT

FOR COMMITTING THE CRIME OF FAILURE OF A SEXUALLY ORIENTED

OFFENDER TO NOTIFY OF CHANGE OF ADDRESS WAS AGAINST THE MANIFEST

WEIGHT OF THE EVIDENCE.
Richland County, Case No. 12CA10                                                         6




                                                I

      {¶17}   Appellant, in his sole assignment of error, argues that his conviction for

failing to notify of change of address is against the manifest weight of the evidence. We

disagree.

      {¶18}   Manifest weight of the evidence claims concern the amount of evidence

offered in support of one side of the case, and is a jury question. We must determine

whether the jury, in interpreting the facts, so lost its way that its verdict results in a

manifest miscarriage of justice, State v. Thompkins , 78 Ohio St.3d 387, 678 N.E.2d

541, 1997–Ohio–52. On review for manifest weight, a reviewing court is “to examine the

entire record, weigh the evidence and all reasonable inferences, consider the credibility

of the witnesses and determine whether in resolving conflicts in the evidence, the trier of

fact clearly lost its way and created such a manifest miscarriage of justice that the

judgment must be reversed. The discretionary power to grant a new hearing should be

exercised only in the exceptional case in which the evidence weighs heavily against the

judgment.” State v. Thompkins, supra, 78 Ohio St.3d at 387, citing State v. Martin

(1983), 20 Ohio App.3d 172, 175, 485 N.E.2d 717 (1st Dist 1983). Because the trier of

fact is in a better position to observe the witnesses' demeanor and weigh their

credibility, the weight of the evidence and the credibility of the witnesses are primarily

for the trier of fact. State v. DeHass, 10 Ohio St.2d 230, 227 N.E.2d 212 (1967),

syllabus 1.

      {¶19}   Appellant, in the case sub judice, was convicted of failure of a sexually

oriented sex offender to notify of change of address in violation of R.C. 2950.05(E)(1).
Richland County, Case No. 12CA10                                                          7


Appellant now maintains that his conviction is against the manifest weight of the

evidence because appellee failed to prove that he was not still “homeless’ during the

period between August 22, 2012 and October 2, 2012 as set forth in the indictment.

      {¶20}   As is stated above, appellant, on August 14, 2012, went to the Richland

County Sheriff’s Office and listed his address as “homeless”. The form signed by

appellant stated that “[s]ince your expected residence address as stated above is

located in Richland County, you shall register in person no later than 11/15/2012” with

the Richland County Sheriff’s Office. The form also contains a handwritten notation

initialed by appellant that directs appellant to “[b]e here by 8-22-12 or sooner if

residence is established.” Appellant never appeared in person on or after such date

even though he was advised by Walls that he needed to do so.

      {¶21}   Rather, on August 24, 2012, appellant left a message for Walls indicating

that he would be moving to 3 DeWeese Place, Apartment A in Mansfield. Appellant

never appeared in person to register such address.

      {¶22}   Testimony was adduced that when Deputy Eichinger and U.S. Marshall

Wilbur went to the 3 DeWeese address at the request of Connie Walls, they observed

appellant go into 3 DeWeese. In addition, Connie Walls testified that she received a

telephone call from Bill Spognardi, who had seen the above officers at the 3 DeWeese

address and was concerned that appellant was not in compliance with his registration

requirements. Spognardi told Walls that he probably was going to be evicting appellant.

Based on the foregoing, we find that the jury did not lose its way in finding that appellant

was living at the DeWeese address and that he never registered the address in person.

While appellant alleges that he did not appear in person on August 22, 2012 because
Richland County, Case No. 12CA10                                                      8


he had surgery on such date, there is no evidence that appellant had surgery or that his

surgery prevented him from registering in person.

      {¶23}    Appellant’s sole assignment of error is, therefore, overruled.

      {¶24}    Accordingly, the judgment of the Richland County Court of Common Pleas

is affirmed.


By: Baldwin, J.

Gwin, P.J. and

Wise, J. concur.




                                          HON. CRAIG R. BALDWIN



                                          HON. W. SCOTT GWIN



                                          HON. JOHN W. WISE




CRB/dr
[Cite as State v. Moore, 2013-Ohio-5009.]


                  IN THE COURT OF APPEALS FOR RICHLAND COUNTY, OHIO

                                   FIFTH APPELLATE DISTRICT


STATE OF OHIO                                  :
                                               :
        Plaintiff - Appellee                   :
                                               :
-vs-                                           :      JUDGMENT ENTRY
                                               :
BRIAN W. MOORE                                 :
                                               :
        Defendant - Appellant                  :      CASE NO. 13CA10


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

judgment of the Court of Common Pleas of Richland County, Ohio is affirmed. Costs

assessed to appellant.




                                            HON. CRAIG R. BALDWIN



                                            HON. W. SCOTT GWIN



                                            HON. JOHN W. WISE
