[Cite as Moffitt v. Telb, 2018-Ohio-1327.]




                             IN THE COURT OF APPEALS OF OHIO
                                 SIXTH APPELLATE DISTRICT
                                      LUCAS COUNTY


Brian Moffitt                                    Court of Appeals No. L-17-1109

        Appellant                                Trial Court No. MS0201001143

v.

Lucas County Sheriff Telb
and State of Ohio                                DECISION AND JUDGMENT

        Appellees                                Decided: April 6, 2018

                                             *****

        Julia R. Bates, Lucas County Prosecuting Attorney, and
        Evy M. Jarrett, Assistant Prosecuting Attorney, for appellee.

        Bradley Fox, for appellant.

                                             *****

        OSOWIK, J.

        {¶ 1} This is an appeal from an April 4, 2017 judgment of the Lucas County Court

of Common Pleas, denying appellant’s petition to be reclassified as a sexually oriented

offender rather than as a predator. Following a 2001 jury trial in appellant’s former home
state of Kentucky, appellant was acquitted of rape and sodomy, and convicted of

kidnapping.

       {¶ 2} After serving the sentence imposed, appellant relocated to Ohio and obtained

gainful employment. This appeal arises from the application of Ohio’s sexual predator

registration requirements to appellant’s Kentucky conviction. For the reasons set forth

below, this court reverses the judgment of the trial court.

       {¶ 3} Appellant, Brian Moffitt, sets forth the following two assignments of error:

              I. The trial court committed reversible error when it denied

       [a]ppellant’s request to be reclassified as a sexually-oriented offender.

              II. The trial court committed reversible error when it violated

       [a]ppellant’s equal protection rights by holding that [a]ppellant, an out-of-

       state registrant, had the duty to prove by clear and convincing evidence that

       he was unlikely to re-offend.

       {¶ 4} The following undisputed facts are relevant to this appeal. In 2001,

appellant resided in the state of Kentucky. On July 14, 2001, appellant agreed to assist a

friend set up a swimming pool at his friend’s home. During that project, the men

consumed significant amounts of alcohol.

       {¶ 5} Later that night, an 11-year-old neighborhood girl, who had also been

hanging out at the home that day, wanted to go along with appellant when he decided to

go out for a drive in his motor vehicle. When they returned from the drive, appellant let

her out some distance away as she had gone along with appellant without permission. In




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the interim, a gathering of the girl’s family and neighbors had been frantically searching

for her.

       {¶ 6} Subsequent to the girl’s return, it was discovered that she had been

surreptitiously out riding around with appellant. Contrary to all evidence, the girl then

alleged that appellant had raped and sodomized her.

       {¶ 7} Following these events, appellant was charged by the state of Kentucky with

rape, sodomy, and kidnapping. In 2002, the case proceeded to jury trial. Notably, an

expert medical examination of the victim unequivocally established her to be a virgin,

contrary to the allegations against appellant. Consistently, there was no DNA evidence,

or any other form of objective evidence, reflecting that any sexual conduct occurred

between the parties.

       {¶ 8} At the conclusion of the jury trial, appellant was acquitted of the rape and

sodomy charges. Appellant was convicted of the kidnapping offense pursuant to a

Kentucky kidnapping statute which possesses no evidentiary sexual component.

       {¶ 9} Pursuant to the statute under which appellant was convicted, one is culpable

upon depriving parents of the custodial control of their minor. Ky.Rev.Stat.Ann.

509.040(1)(f). There are no sexual offense convictions in appellant’s criminal history.

       {¶ 10} On March 1, 2010, appellant completed the term of incarceration imposed

in Kentucky and was released. Appellant subsequently relocated to Ohio where he

obtained employment with a Toledo area roofing contractor.




3.
       {¶ 11} Despite the specific facts and context of appellant’s Kentucky conviction

and acquittals, appellant has been classified in Ohio as a sexual predator for registration

and reporting requirement purposes.

       {¶ 12} On September 27, 2016, appellant filed a petition with the trial court to be

reclassified as a sexually-oriented offender, rather than the more stringent sexual predator

classification. Subsequent to the filing of this petition, appellant was referred for an

expert evaluation by Dr. Charlene Cassel (“Cassel”), an established area clinical

psychologist with background and experience relevant to this matter.

       {¶ 13} On December 8, 2016, Cassel met with appellant and conducted an

exhaustive examination and assessment. Cassel’s written report noted that appellant’s

Kentucky registration requirement was triggered by the Kentucky conviction being

defined as a “criminal offense against the victim who was a minor,” rather than on any

sort of sexual conduct or conviction basis.

       {¶ 14} Significantly, the expert report definitively concluded, “[T]here appears to

be clear evidence that [appellant] has a relatively low risk for committing another

sexually oriented offense.” The report emphasized that although appellant was initially

charged with two sexually oriented offenses, rape and sodomy, “[A] jury trial found him

not guilty.”

       {¶ 15} Despite the above-described facts and context, appellee asserted in

opposition to appellant’s petition to be reclassified that appellant’s underlying Kentucky

kidnapping conviction should be construed as substantially equivalent to an Ohio




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sexually-oriented offense, the petition should be denied, and appellant should be deemed

a sexual predator, rather than the lesser classification sought by appellant, for purposes of

Ohio laws.

       {¶ 16} On April 4, 2017, without conducting an evidentiary hearing, the trial court

held that, “[Appellant] has not met his burdens of showing, by clear and convincing

evidence, that he did not commit a sexually-oriented offense and that he is not likely to

commit such an offense in the future.” The petition was denied. This appeal ensued.

       {¶ 17} In the first assignment of error, appellant maintains that given appellant’s

acquittals of the rape and sodomy offenses and the lack of any evidence of sexual

conduct between appellant and the victim, the trial court erred in denying appellant’s

petition to be reclassified as a sexually-oriented offender, rather than as a sexual predator.

We concur.

       {¶ 18} The parties concur that the applicable Ohio statute, which was in effect at

the time of appellant’s out-of-state conviction, is former R.C. 2950.09, which is

commonly referred to as Megan’s Law.

       {¶ 19} Pursuant to former R.C. 2950.09(F)(2), an Ohio trial court may find that an

offender moving in from out-of-state is not a sexual predator for Ohio registration

purposes if the party, “[P]roves by clear and convincing evidence that the requirement of

the other jurisdiction * * * is not substantially similar to a classification as a child-victim

predator for purposes of this chapter.”




5.
       {¶ 20} The Kentucky kidnapping statute under which appellant was convicted

does not implicate or reflect sexual intent or sexual conduct. On the contrary, it requires

proof of a “[C]riminal offense against a victim who is a minor.” Ky.Rev.Stat.Ann.

509.040. These convictions statutorily trigger an automatic lifetime registration

requirement in Kentucky. Ky.Rev.Stat.Ann. 17.520(2)(a)(1).

       {¶ 21} Conversely, the record reflects that in order to be classified as a child-

victim sexual predator pursuant to the Megan’s Law statutory provisions, an Ohio court

must consider an array of factors not present or applicable to the Kentucky law such as

the use of alcohol or drugs to impair the minor, the offender’s age, the victim’s age, any

patterns of abuse or cruelty, and the offender’s prior criminal history.

       {¶ 22} Ohio courts utilized these factors in determining whether to impose a more

stringent sexual predator classification, or alternatively, one of the lesser classifications

with less stringent requirements. Former R.C. 2950.09(B)(3).

       {¶ 23} Illuminating the above-described discrepancies, in Kentucky appellant was

statutorily deemed a “registrant,” with no connotation or implication of sexual conduct or

a sexual conviction, whereas appellant’s subsequent Ohio judicially-driven classification

as a “predator,” indicates sexual conduct and a sexually-based conviction.

       {¶ 24} Based upon the foregoing, and the entire record of evidence, we find that

the record reflects by clear and convincing evidence that the comparative statutory

provisions in Kentucky and Ohio were not substantially similar so as to warrant the




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imposition of a sexual predator classification upon appellant in Ohio for his prior

Kentucky conviction.

         {¶ 25} The record reflects that appellant was acquitted of both sexually-based

offenses in the Kentucky jury trial, the record reflects no evidence of sexual conduct

between appellant and the victim, and the record reflects multiple material differences

between the Kentucky and Ohio statutes.

         {¶ 26} As such, we find that the disputed April 3, 2017 trial court denial of

appellant’s September 27, 2016 petition for reclassification was against the manifest

weight of the evidence. Accordingly, we find appellant’s first assignment of error well-

taken.

         {¶ 27} In appellant’s second assignment of error, appellant maintains that the trial

court erred in imposing an evidentiary duty upon appellant regarding the likelihood of

reoffending.

         {¶ 28} Given our determination in response to appellant’s first assignment of

error, finding that the trial court erred in denying the underlying petition for

reclassification, we find that appellant’s second assignment of error is moot.

         {¶ 29} Wherefore, the April 3, 2017 judgment of the Lucas County Court of

Common Pleas, denying appellant’s September 27, 2016 petition for reclassification, is

hereby reversed.




7.
       {¶ 30} Lastly, pursuant to App.R. 12(B), this court grants appellant’s

September 27, 2016 petition for reclassification and remands this appeal to the trial court

to render such judgment. Appellee is ordered to pay the costs of this appeal pursuant to

App.R. 24.


                                                                        Judgment reversed.




       A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.




Arlene Singer, J.                              _______________________________
                                                           JUDGE
Thomas J. Osowik, J.
                                               _______________________________
Christine E. Mayle, P.J.                                   JUDGE
CONCUR.
                                               _______________________________
                                                           JUDGE


           This decision is subject to further editing by the Supreme Court of
      Ohio’s Reporter of Decisions. Parties interested in viewing the final reported
           version are advised to visit the Ohio Supreme Court’s web site at:
                    http://www.supremecourt.ohio.gov/ROD/docs/.




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