[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
2. 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
4. 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).
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[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
2. 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
4. 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
6. 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/.
8.