State v. Bickel

Ohio Court of Appeals

State v. Bickel

2014 Ohio 1718

Ohio Court of Appeals·Decided April 21, 2014·No. 13-CA-44·Published·Cited by 2 cases

Opinion

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

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

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.

{¶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

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,

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.

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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

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

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.

{¶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

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,

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.

{¶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.

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?