[Cite as State v. Bickel, 2014-Ohio-1718.]
COURT OF APPEALS FAIRFIELD COUNTY, OHIO FIFTH APPELLATE DISTRICT
JUDGES: STATE OF OHIO : Hon. W. Scott Gwin, P.J. : Hon. John W. Wise, J. Plaintiff-Appellee : Hon. Patricia A. Delaney, J. : -vs- : : Case No. 13-CA-44 ROBERT L. BICKEL : : Defendant-Appellant : OPINION
CHARACTER OF PROCEEDING: Criminal appeal from the Fairfield County Court of Common Pleas, Case No. 2011- CR-0529
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: April 21, 2014
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
GREGG MARX DAVID A. SAMS Prosecuting Attorney Box 40 BRITTANY J. KAROCKI West Jefferson, OH 43162 Assistant Prosecuting Attorney 239 W. Main Street, Ste. 101 AARON CONRAD Lancaster, OH 43130 144 E. Main Street Lancaster, OH 43130 [Cite as State v. Bickel, 2014-Ohio-1718.]
Gwin, P.J.
{¶1} Defendant-appellant Robert L. Bickel [“Bickel”] appeals from his
convictions and sentences after a negotiated guilty plea to one count of rape in violation
of R.C. 2907.02(A)(1)(b), one count of gross sexual imposition with a minor in violation
of R.C. 2905.05(A)(4), and one count of illegal use of a minor in nudity-oriented material
or performance, in violation of R.C. 2907.323(A)(1).
Facts and Procedural History
{¶2} On April 30, 2013, pursuant to a negotiated plea agreement, Bickel
entered a plea of "no contest" to one count of rape, one count of gross sexual
imposition with a minor, and one count of illegal use of minor in nudity-oriented material
or performance. Bickel stipulated to the existence of facts sufficient for a finding of guilt.
Bickel was sentenced to eight years on rape, 36 months on gross sexual imposition with
a minor, and seven years on illegal use of minor in nudity-oriented material or
performance. The Court found that the sentence was a joint recommendation pursuant
to R.C. 2953.08(D).
Assignments of Error
{¶3} Bickel raises two assignments of error,
{¶4} “I. THE INDICTMENT WAS STRUCTURALLY INSUFFICIENT
CONTRARY TO OHIO LAW AND THE STATE AND FEDERAL CONSTITUTIONS AS
IT FAILED TO ALLEGE THE ELEMENTS OF RECKLESSNESS, THAT THE OFFENSE
IN QUESTION WAS A SEXUALLY ORIENTED OFFENSE UNDER CHAPTER 2950 OF
THE REVISED CODE AND THAT THE MATERIAL IN QUESTION WAS EITHER A
LEWD EXHIBITION OR THAT IT GRAPHICALLY FOCUSED ON THE GENITALS AND Fairfield County, Case No. 13-CA-44 3
WAS NOT POSSESSED OR VIEWED FOR EITHER A BONA FIDE PURPOSE OR
WITH WRITTEN PARENTAL CONSENT AS REQUIRED BY R.C. 2907.323(A)(3)(a-b).
{¶5} “II. THE DEFENDANT-APPELLANT'S CONVICTION AND SENTENCE
FOR THE ILLEGAL USE OF A MINOR IN NUDITY-ORIENTED MATERIAL UNDER
R.C. 2907.323(A)(3) AND HIS RESULTING CLASSIFICATION THEREUNDER AS A
TIER I SEX OFFENDER ARE VOID AS THE INDICTMENT FAILED TO ALLEGE THE
ELEMENTS OF RECKLESSNESS, THAT THE OFFENSE INVOKED R.C. CHAPTER
2950, THAT THE MATERIAL IN QUESTION WAS EITHER A LEWD EXHIBITION OR
THAT IT GRAPHIC-ALLY FOCUSED ON THE GENITALS AND THAT IT WAS EITHER
NOT POSSESSED FOR A BONA FIDE PURPOSE OR WITH WRITTEN PARENTAL
CONSENT CONTRARY TO OHIO LAW AND THE STATE AND FEDERAL
CONSTITUTIONS.”
Analysis
{¶6} Bickel’s first and second assignments of error raise common and
interrelated issues; therefore, we will address the arguments together.
{¶7} Bickel argues in his first and second assignments of error that his
indictment was void. Subsumed within this objection are three challenges 1). The
indictment did not specify the requisite mens rea element of recklessness required for a
conviction; 2). The indictment failed to give notice that the offenses in question were
sexually oriented offenses; and 3). The indictment failed to allege that the material in
question was either a lewd exhibition or that it graphically focused on the genitals.
1. Failure to include mens res. Fairfield County, Case No. 13-CA-44 4
{¶8} Recklessness is the culpable mental state required to constitute a violation
of illegal use of a minor in nudity oriented materials or performances in violation of R.C.
2907.323(A)(1). State v. Young, 37 Ohio St.3d 249, 525 N.E.2d 1363(1988), reversed
on other grounds by Osborne v. Ohio, 495 U.S. 103, 110 S.Ct. 1691, 109 L.Ed .2d
98(1990); Accord, State v. Tooley, 114 Ohio St.3d 366, 2007–Ohio–3698, 872 N.E.2d
894, ¶ 37.
{¶9} In State v. Horner, the Ohio Supreme Court held in the syllabi,
(1) an indictment that charges an offense by tracking the language
of the criminal statute is not defective for failure to identify a culpable
mental state when the statute itself fails to specify a mental state,
overruling State v. Colon, 118 Ohio St.3d 26, 2008–Ohio–1624, 885
N.E.2d 917, and State v. Colon, 119 Ohio St.3d 204, 2008–Ohio–3749,
893 N.E.2d 169;
(2) by failing to timely object to a defect in an indictment, a
defendant waives all but plain error on appeal, overruling State v. Colon,
118 Ohio St.3d 26, 2008–Ohio–1624, 885 N.E.2d 917[.]
126 Ohio St.3d 466, 2010–Ohio–3830, 935 N.E.2d 26, paragraph one and two of the
syllabus.
{¶10} In the case at bar, the trial court accepted Bickel’s pleas. There was no
jury impaneled and therefore, no argument was made alleging this to be a strict liability
offense nor was a jury improperly instructed. Competent counsel represented Bickel
and Bickel, with the assistance of counsel, entered into a negotiated plea. Bickel was
sentenced pursuant to that negotiated plea. Bickel did not object and therefore failed to Fairfield County, Case No. 13-CA-44 5
preserve his claim that the indictment against him was constitutionally defective. See,
State v. Ellis, Fifth Dist. No. 2007–CA–46, 2008–Ohio–7002, ¶ 26. Therefore, this Court
may analyze the error in this case pursuant to the Crim.R. 52(B) plain error analysis. As
the United States Supreme Court observed in Puckett v. United States, 526 U.S. 129,
129 S.Ct. 1423, 173 L.Ed.2d 266, (2009),
{¶11} If an error is not properly preserved, appellate-court authority to
remedy the error (by reversing the judgment, for example, or ordering a new trial)
is strictly circumscribed. There is good reason for this; “anyone familiar with the
work of courts understands that errors are a constant in the trial process, that
most do not much matter, and that a reflexive inclination by appellate courts to
reverse because of unpreserved error would be fatal.”
556 U.S. at 134. (Citation omitted).
[A]n appellate court may, in its discretion, correct an error not
raised at trial only where the appellant demonstrates that (1) there is an
error; (2) the error is clear or obvious, rather than subject to reasonable
dispute; (3) the error affected the appellant’s substantial rights, which in
the ordinary case means it affected the outcome of the district court
proceedings; and (4) the error seriously affect[s] the fairness, integrity or
public reputation of judicial proceedings.
United States v. Marcus, 560 U.S. 258, 130 S.Ct. 2159, 2164,176 L.Ed.2d 1012
(Internal quotation marks and citations omitted). The Ohio Supreme Court pertinently
addressed when structural error analysis should be used in State v. Perry, Fairfield County, Case No. 13-CA-44 6
We emphasize that both this court and the United States Supreme
Court have cautioned against applying a structural-error analysis where,
as here, the case would be otherwise governed by Crim.R. 52(B) because
the defendant did not raise the error in the trial court. See Hill, 92 Ohio
St.3d at 199, 749 N.E.2d 274; Johnson, 520 U.S. at 466, 117 S.Ct. 1544,
137 L.Ed.2d 718. This caution is born of sound policy. For to hold that an
error is structural even when the defendant does not bring the error to the
attention of the trial court would be to encourage defendants to remain
silent at trial only later to raise the error on appeal where the conviction
would be automatically reversed. We believe that our holdings should
foster rather than thwart judicial economy by providing incentives (and not
disincentives) for the defendant to raise all errors in the trial court-where,
in many cases, such errors can be easily corrected.
101 Ohio St.3d 118, 802 N.E.2d 643, 2004–Ohio–297, ¶ 23. Thus, the defendant bears
the burden of demonstrating that a plain error affected his substantial rights and, in
addition that the error seriously affect[s] the fairness, integrity or public reputation of
judicial proceedings. United States v. Olano, 507 U.S. 725, 734, 113 S.Ct. 1770, 123
L.Ed.2d 508(1993); State v. Perry, 101 Ohio St.3d at 120, 802 N.E.2d 643. Even if the
defendant satisfies this burden, an appellate court has discretion to disregard the error.
State v. Barnes, 94 Ohio St.3d 21, 27, 759 N.E.2d 1240(2002); State v. Long, 53 Ohio
St.2d 91, 372 N.E.2d 804(1978), paragraph three of the syllabus; Perry, supra, at 118,
802 N.E.2d at 646. Fairfield County, Case No. 13-CA-44 7
{¶12} Under the circumstances of the case at bar, there is nothing in the record
to show that Bickel was prejudiced. Bickel received the aggregate sentence he had
agreed upon in exchange for his pleas of guilty. We find any error in the indictment’s
failure to specify the requisite mens rea element of recklessness was harmless beyond
a reasonable doubt. State v. Moore, 5th Dist. Muskingum No. CT2012-0047, 2013-
Ohio-2185, ¶12.
2. Notice that the offenses in question were a sexually oriented offense.
{¶13} Bickel next asserts that the indictment is defective because it did not
apprise him that he was charged with sexually oriented offenses, and therefore, he was
not placed on notice that he would become subject to the classification and reporting
requirements of Chapter 2950.
{¶14} In the case at bar, the Plea Agreement signed by Bickel and his attorney
and filed April 30, 2013, provided in relevant part,
VIII. Pursuant to Chapter 2950 of the Ohio Revised Code, the
Defendant, Robert L. Bickel, will be classified as a Tier III sex
offender/child-victim offender, and is required to register every 90 days for
life.
Plea Agreement, April 30, 2013 ¶VIII. The agreement further specifies that Bickel was
previously convicted or plead guilty to a sexually oriented offense or child-victim
oriented offense and had been classified as a sexual predator. Id. at ¶VIII (b)-(c). Prior
to the entry of his pleas, the state noted in open court,
Pursuant to Chapter 2950 of the Ohio Revised Code, the
Defendant Robert L. Bickel, will be classified as a Tier III Sex Fairfield County, Case No. 13-CA-44 8
Offender/Child Victim offender, and is required to register every 90 days
for life.
T. Change of Plea/Sentencing, April 30, 2013 at 7-8.
{¶15} Prior to accepting Bickel’s plea, the trial court informed Bickel as follows,
[THE COURT:] Mr. Bickel, there are some questions that I'm
required to ask you, some statements that I'm required to make to you. If
you have any questions about anything that I ask you, please feel free to
speak up. You can even interrupt me and say you don't understand. Or if
you have questions and you want to speak to your attorney, just tell me
you want to speak to your attorney. Don't tell me -- if you want to talk to
your attorney, don't tell me what you want to talk to him about. That's
private or confidential. But if you want to talk to your attorney, just speak
up and tell me, "I want to speak to my attorney," and we will stop and take
however much time you and Mr. Conrad need before deciding whether to
proceed, and if so, how to proceed. Also, if you do not hear me --
anything that I say to you, again, please feel free to speak up and tell me
you didn't hear or to repeat what I've stated. Do you understand?
THE DEFENDANT: Yes, sir.
T. Change of Plea/Sentencing, April 30, 2013 at 11-12. Concerning the duty to register,
the trial court explained,
THE COURT: Okay. Now there's certain things, certain obligations
and restrictions that would be placed on you if you plead no contest and if
I find you guilty of the rape and you're classified as a Tier III Sex Offender. Fairfield County, Case No. 13-CA-44 9
Some of those requirements are that once you are released from prison,
you would be required to report to the sheriff of the county where you live,
work, go to school. Do you understand that?
THE DEFENDANT: Yes, Your Honor.
THE COURT: If those are different counties -- for instance, if you
were to live in Fairfield County, but work in Perry County or go to school in
Perry County or Hocking County, then you would have to report in both
Fairfield County and Perry County. Do you understand that?
THE COURT: You would need to report to the sheriff of those three
counties within three days of being released from prison so they know
that you're out. Do you understand that?
THE COURT: You would also have to do this reporting at a
minimum of every 90 days. Do you understand that?
THE COURT: If you change locations of your residence -- in other
words, you move, you change where you work, where you go to school,
you would have to notify the sheriff of the counties where you're living,
working, going to school or wherever you're going to do that, of those
changes at or near the time of your change. Do you understand that?
THE DEFENDANT: Yes, Your Honor. Fairfield County, Case No. 13-CA-44 10
THE COURT: Okay. And I believe it has to be done at least 20
days before the change, and no later than three days after the change. So
if you move, you could notify the sheriff of the counties where you're at on
where you're going to at least 20 days before you move, but not later than
three days after you move.
THE COURT: Okay. There are some other -- again, I stated, you
would have to report for the rest of your lifetime and at least every 90
days. Do you understand that?
THE COURT: And if you're going to go some place and you're
going to have some temporary lodging or place to stay, and you're going
to be away for more than seven days, you have to notify the sheriff of that.
Do you understand that?
THE COURT: There's a document here that I've prepared, Mr.
Bickel, titled, "Explanation of Duties to Register as a Sex Offender or Child
Victim Offender, Duties Commencing On or After January 1, 2008." And
then it gives some Ohio Revised Code section numbers. This is an eight
and a half by 14 multiple copy document. Did you have the opportunity to
read this document before I came into the courtroom today?
THE DEFENDANT: I have read it before at home. Fairfield County, Case No. 13-CA-44 11
THE COURT: Okay. And did you have the opportunity -- when you
said at home, was that from your prior case?
THE COURT: Okay. Did you have the opportunity to go over this
document today with your attorney, Mr. Conrad, before I came into the
courtroom?
THE DEFENDANT: No, sir.
THE COURT: Okay. Why don't you take -Mr. Conrad, why don't
you come and get the document, take a look at it with your client and see
if that refreshes his recollection.
(Pause in proceedings.)
MR. CONRAD: Did you want to ask him a question, Your Honor? I
think by showing him that document, he recalls going over that.
THE COURT: Yeah. Mr. Bickel, you and Mr. Conrad -- I don't know
what you said, obviously. You and Mr. Conrad apparently were meeting
back in the jury room with the door closed before this hearing started
today; is that correct?
THE COURT: Okay. And while you were in -- at least while you
were in the jury room with Mr. Conrad, did you go over that document that
I've just referred to?
THE COURT: Okay. And that document is in front of you right now? Fairfield County, Case No. 13-CA-44 12
THE COURT: Okay. And did you have -- when you went over it, did
you have any questions for your attorney about the document?
THE COURT: Okay. Do you have any questions for me as the
Judge and the person who prepared that document, about what any of the
words on that document mean to you or to your case?
THE COURT: Are you confident you understand the document?
THE COURT: And did you sign the document?
THE COURT: Okay. And Mr. Conrad, did you have any questions
or anything you wanted to discuss with Mr. Bickel about this document at
this point?
THE DEFENDANT: No, Your Honor.
THE COURT: Okay. And Mr. Bickel, do you have any questions or
anything you want to talk to your attorney about this document before we
proceed?
THE COURT: Okay. And you're confident you understand it.
THE DEFENDANT: Yes, sir. Fairfield County, Case No. 13-CA-44 13
T. Change of Plea/Sentencing, April 30, 2013 at 32-37. At no time during this exchange
did Bickel indicate his disapproval or confusion to the trial court upon being informed by
the trial court that he would be found to be a Tier III registrant with the attendant duties
and responsibilities.
{¶16} In the case at bar, if Bickel did not understand that he faced a registration
and reporting requirement before the plea, he certainly knew it immediately afterward
and could have objected to the plea at that time if he had been surprised by it or prior to
sentencing. State v. Moore, 5th Dist. Muskingum No. CT2012-0047, 2013-Ohio-2185,
¶16.
{¶17} Given the record, we further find that Bickel has failed to demonstrate that
he was prejudiced by any failure to include within the indictment that the offenses in
question were sexually oriented offenses. Based upon the record of the case before us,
we find any error in the failure to include within the indictment that the offenses in
question were sexually oriented offenses was harmless beyond a reasonable doubt.
3. Failure to allege that the material in question was either a lewd exhibition
or that it graphically focused on the genitals
{¶18} Bickel next argues that the indictment was defective because the
indictment failed to allege that the material in question was either a lewd exhibition or
that it graphically focused on the genitals as required by 2907.323.
{¶19} Crim.R. 7(B) provides that the indictment shall contain a statement that
may be in the words of the applicable section of the statute, provided the words of the
statute charge an offense, or in words sufficient to give the defendant notice of all the
elements of the offense with which the defendant is charged. Fairfield County, Case No. 13-CA-44 14
{¶20} R.C. 2907.323(A)(3) provides that no person shall “possess or view any
material or performance that shows a minor who is not the person’s child or ward in a
state of nudity.” The statute has been construed “as reaching only nudity that either
constitutes a lewd exhibition or involves a graphic focus on the genitals.” State v.
Young, 37 Ohio St.3d 249, 525 N.E.2d 1363(1988), reversed on other grounds by
Osborne v. Ohio, 495 U.S. 103, 110 S.Ct. 1691, 109 L.Ed.2d 98(1990). While Osborne
may limit the proof of “a state of nudity” to lewdness or graphic focus on the genitals, in
order to meet a constitutional objective, it does not alter the elements of R.C.
2907.323(A)(1). “[S]tate of nudity” is not a separate element but merely defines that
element in R.C. 2907.323(A)(1) and (A)(3). The indictment as worded properly sets forth
offenses under Ohio law and satisfied Crim.R. 7(B). State v. Sullivan, 2nd Dist.
Montgomery No. 23948, 2011–Ohio–2976, ¶ 27; Accord, State v. Moore, 5th Dist.
Muskingum No. CT2012-0047, 2013-Ohio-2185; State v. Videen, 2nd Dist. Montgomery
No. 25183, 2013–Ohio–1364, ¶ 47; State v. O’Connor, 12th Dist. Butler No. CA2001–
08–195, 2002–Ohio–4122, ¶ 31; State v. Dolman, 6th Dist. Williams No. WM–10–007,
2010–Ohio–5505, ¶ 34; Contra, State v. Moss, 1st Dist. Hamilton No. C–990631, 2000
WL 376434(Apr. 14, 2000)(finding that while the indictment mirrored the language of
R.C. 2907.323(A)(3), the indictment failed to allege that the material forming the basis of
the charge was lewd or graphically focused on the genitals. The court found such an
allegation to be a “judicially engrafted” element of the crime in light of State v. Young.
Therefore, the court concluded that the facts alleged in the indictment were insufficient
to state a punishable offense). The O’Connor court found, however, that Moss’s
interpretation of Young was invalid because “it is only the legislature, not the judiciary,” Fairfield County, Case No. 13-CA-44 15
that “has the power to engraft or enact additional elements” of an offense. O’Conner,
2002–Ohio–4122, ¶ 30. See, also, Moss, Hildebrandt, P.J., dissenting; Dolman, 2010–
Ohio–5505, ¶ 34.
{¶21} In the case at bar, the indictment charged each offense in the words of the
statute. The purpose of the indictment is to give the accused adequate notice of the
crime charged. State v. Buehner, 110 Ohio St.3d 403, 853 N.E.2d 1162, 2006–Ohio–
4707, ¶7. An indictment or bill of information is sufficient if it contains the elements of
the offense charged, fairly informs the defendant of the charge, and enables the
defendant to plead an acquittal or conviction in bar of future prosecutions for the same
offense. Id. at ¶ 9. As applied to the present case, the indictment cites to R.C.
2907.323(A)(1) and tracks the statutory language of the charged offenses. This is
sufficient. An admission to the facts of an indictment that alleges the depiction of a
“state of nudity” includes by definition an admission to lewdness or graphic focus on the
genitals. Moore, ¶22. Fairfield County, Case No. 13-CA-44 16
{¶22} For all the above reasons Bickel's first and second assignments of error
are overruled and the judgment of the Court of Common Pleas, Fairfield County, Ohio is
affirmed.
By Gwin, P.J.,
Wise, J., and
Delaney, J., concur