State v. Carroll

2021 Ohio 2172

• Court: Ohio Court of Appeals
• Decided: June 25, 2021
• Docket: 20 CAA 09 0039
• Status: Published

Opinion

[Cite as State v. Carroll, 2021-Ohio-2172.]

COURT OF APPEALS DELAWARE COUNTY, OHIO FIFTH APPELLATE DISTRICT

STATE OF OHIO, : JUDGES: : Hon. Craig R. Baldwin, P.J. Plaintiff - Appellee : Hon. W. Scott Gwin, J. : Hon. Earle E. Wise, J. -vs- : : JOSON R. CARROLL, : Case No. 20 CAA 09 0039 : Defendant - Appellant : OPINION

CHARACTER OF PROCEEDING: Appeal from the Delaware County Court of Common Pleas, Case No. 19 CR I 11 0775

JUDGMENT: Affirmed

DATE OF JUDGMENT: June 25, 2021

APPEARANCES:

For Plaintiff-Appellee For Defendant-Appellant

MELISSA A. SCHIFFEL WILLIAM T. CRAMER Delaware County 470 Olde Worthington Rd., Suite 200 Prosecuting Attorney Westerville, Ohio 43082

By: PAYTON ELIZABETH THOMPSON Delaware County Assistant Prosecutor 145 N. Union Street, 3rd Floor Delaware, Ohio 43015 Delaware County, Case No. 20 CAA 09 0039 2

Baldwin, J.

{¶1} Defendant-appellant Joson Carroll appeals his conviction from the

Delaware County Court of Common Pleas. Plaintiff-appellee is the State of Ohio.

STATEMENT OF THE FACTS AND CASE

{¶2} On November 22, 2019, the Delaware County Grand Jury indicted appellant

on one count of failure to notify of residence change in violation of R.C. 2950.05(F)(1), a

felony of the second degree. At his arraignment on December 16, 2019, appellant

entered a plea of not guilty to the charge.

{¶3} Thereafter, a bench trial commenced on September 1, 2020. The following

testimony was adduced at trial.

{¶4} In 2013, appellant was listed on the sex offender registry after he was

convicted in Licking County for illegal use of minors in nudity-oriented materials in

violation of R.C. 2907.323. Appellant, who was a Tier II sex offender, was required to

register every 180 days for twenty-five years.

{¶5} Valerie Hooper maintained the sex offender registry for the Delaware

County Sherriff’s Office .Her office is located at the Delaware County Jail. Hooper testified

that when she first came into contact with appellant in 2014, he was living in Delaware

County but registered as homeless in Licking County. She testified that appellant started

registering in Licking County in July of 2013.

{¶6} Hooper testified that appellant was claiming to be homeless in Licking

County but was actually living in an apartment in Sunbury, Ohio but had not registered

with Delaware County. She first met appellant when he was picked up an unrelated Delaware County, Case No. 20 CAA 09 0039 3

charge in Delaware County. Hooper testified that there was a specific procedure for

homeless registrants to follow and that appellant previously had utilized that procedure.

{¶7} In 2014 and in 2016, appellant had pled guilty to lesser included offenses

of attempted failure to provide change of address and attempted failure to register. In

2017, appellant was found guilty of failure to provide notice of change of address, a felony

of the second degree, and was sentenced to prison.

{¶8} On September 27, 2020, Hooper performed a sex offender compliance

check and appellant passed. On October 1, 2019, appellant changed his address to 2121

Panhandle Road, Lot 14 in Delaware, Ohio. Hooper testified that appellant properly

reported his new address by calling in to report the change and then by physically coming

into her office. At that address, appellant would be residing with Sarah White and Logan

Bowsher who was White’s boyfriend. Hooper verified appellant’s address by speaking to

Andrew Lewis, appellant’s parole officer.

{¶9} On October 23, 2019, Hooper was talking to Lewis on another matter when

he asked her if she had spoken to or heard from appellant. She had not. Lewis told her

that appellant was no longer at the Panhandle Road address. Hooper then called Sarah

White and was told that White had asked appellant to leave after there were complaints

about appellant living there and the landlord had stated that appellant could not live there

anymore. White told her that appellant had left on October 20, 2019. Hooper testified that

she spoke with Kenneth Parrish, the landlord, and he stated that “he had spoken to Sarah

White and that [appellant] was simply providing the phone—the address of the 2121

Panhandle, Lot 14, and was supposed to give her money to say that he was living at that

address in case I showed up to check.” Transcript at 127. She testified that it was not Delaware County, Case No. 20 CAA 09 0039 4

clear to her whether appellant had been living there and been kicked out on Sunday,

October 20th or whether he was just paying someone to say that he lived there when he

never did and that either way there was a violation.

{¶10} After speaking with Parrish, Hooper called Little Caesars, appellant’s

employer, and was told that appellant had been suspended.

{¶11} Hooper testified that she should have heard from appellant on Monday the

day after he moved out but did not hear from him again until November 6, 2019. On

November 6, 2019, appellant left a voicemail for Hooper stating that he was living in cars

and was busy with work and mental health appointments and needed to reregister as

homeless. She testified that the only phone calls from appellant were on October 1, 2019

and November 6, 2019 and that the only time that appellant came in was on October 1,

2019.

{¶12} Hooper testified that on January 23, 2020, she made contact with Lindsay

Wolford after listening to appellant’s jail phone calls. Wolford told her that appellant had

come to stay with her for approximately 10 days. The first time that he stayed over was

in mid-November of 2019. After Wolford found out that appellant had a warrant, she asked

him to leave. Appellant left the day prior to Thanksgiving of 2019 on foot and was arrested

on an unrelated charge on November 29, 2019. He left his belongs in Wolford’s shed

until he could pick them up. During the time that appellant stayed with Wolford, appellant

left a few times to see his children and girlfriend. Wolford testified that appellant never

asked to borrow her phone. She testified that if asked, she would have permitted

appellant to use his phone to contact his probation officer. Delaware County, Case No. 20 CAA 09 0039 5

{¶13} At the trial, Sarah White testified that appellant moved in with her

approximately October 5, 2019. On October 20, 2019, Kenneth Parrish, her landlord, told

her that appellant could not live there anymore because he was a sex offender. White

told appellant who gathered his belongings and left. White also called Hooper and left her

a voicemail. When Hooper called her back the next day, White told her that appellant had

to move.

{¶14} Kenneth Parrish, the landlord, testified that he was told by a resident of his

mobile home community that a sex offender was using Lot 14 of 2121 Panhandle Road

as his address. Parrish checked online and found that appellant was listed on the sex

offender registry as living at Sarah White’s trailer. According to Parrish, White told him

that appellant was going to give her money to use her address as his residence but had

not paid her. He further testified that White told him that appellant came over once in a

while in case Hooper showed up to see if he was living there. Parrish denied telling White

that appellant had to leave, but told her that he had to get the address off of the registry.

Afterwards, Parrish did not hear any more complaints about appellant.

{¶15} Appellant testified in his own defense at trial. During his testimony, he

confirmed that he left the Panhandle address on or about October 20, 2019. He testified

that he stayed with a friend, Christina Hair, in Marion County and Hair’s mother in

Delaware County for a few days. Appellant further testified that he stayed in a car a few

times and with his friend Mike a few days. He testified that he stayed in another friend’s

car prior to messaging Lindsay Wolford and ended up staying with her for about ten days.

{¶16} Appellant, during his cross-examination, testified that he had previously

registered as homeless with Hooper, so he was familiar with the process. He testified that Delaware County, Case No. 20 CAA 09 0039 6

he was worn out from walking everywhere and trying to find a place to sleep and trying to

keep his counseling appointments that the reporting requirement was not a high priority.

According to appellant, it also was not a high priority because Hooper had allowed him,

on numerous occasions, to go more than three weeks without registering a new address

and had been understanding and helpful on other occasions. He testified that when he

reported over the voicemail of November 6, 2019, he thought that he was in compliance

because he had “done it several times before.” Transcript at 216.

{¶17} Appellant now appeals, raising the following assignment of error on appeal:

{¶18} “I. THE CONVICTION WAS AGAINST THE MANIFEST WEIGHT OF THE

EVIDENCE.”

I

{¶19} Appellant, in his sole assignment of error on appeal, argues that his

conviction for failing to notify of a change in address in violation of R.C. 2950.05(F)(1) is

against the manifest weight of the evidence. We disagree.

{¶20} As to the weight of the evidence, the issue is whether the jury created a

manifest miscarriage of justice in resolving conflicting evidence, even though the

evidence of guilt was legally sufficient. State v. Thompkins, 78 Ohio St.3d 380, 386-387,

678 N.E.2d 541 (1997), superseded by constitutional amendment on other grounds as

stated by State v. Smith, 80 Ohio St.3d 89, 684 N.E.2d 668, 1997-Ohio-355; State v. Issa,

93 Ohio St.3d 49, 67, 752 N.E.2d 904 (2001).

{¶21} “[I]n determining whether the judgment below is manifestly against

the weight of the evidence, every reasonable intendment and every reasonable

presumption must be made in favor of the judgment and the finding of facts. Delaware County, Case No. 20 CAA 09 0039 7

If the evidence is susceptible of more than one construction, the

reviewing court is bound to give it that interpretation which is consistent with

the verdict and judgment, most favorable to sustaining the verdict and

judgment.

Seasons Coal Co., Inc. v. Cleveland, 10 Ohio St.3d 77, 80, 461 N.E.2d 1273 (1984), fn.

3, quoting 5 Ohio Jurisprudence 3d, Appellate Review, Section 63, at 191-192 (1978).

{¶22} The reviewing court must bear in mind, however, that credibility generally is

an issue for the trier of fact to resolve. State v. Issa, 93 Ohio St.3d 49, 67, 2001-Ohio-

1290, 752 N.E.2d 904. Because the trier of fact sees and hears the witnesses and is

particularly competent to decide whether, and to what extent, to credit the testimony of

particular witnesses, the appellate court must afford substantial deference to its

determinations of credibility. Barberton v. Jenney, 126 Ohio St.3d 5, 2010-Ohio-2420,

929 N.E.2d 1047, ¶ 20, superseded by statute on other grounds as stated in In re Z.E.N.,

4th Dist. Scioto No. 18CA3826, 2018-Ohio-2208, ¶ 27. In other words, “[w]hen there

exists two fairly reasonable views of the evidence or two conflicting versions of events,

neither of which is unbelievable, it is not our province to choose which one we

believe.” State v. Dyke, 7th Dist. Mahoning No. 99 CA 149, 2002-Ohio-1152, at ¶

13, citing State v. Gore, 131 Ohio App.3d 197, 201, 722 N.E.2d 125(7th Dist. 1999). Thus,

an appellate court will leave the issues of weight and credibility of the evidence to the fact

finder, as long as a rational basis exists in the record for its decision. State v. Picklesimer,

4th Dist. Pickaway No. 11CA9, 2012-Ohio-1282, ¶ 24.

{¶23} Once the reviewing court finishes its examination, an appellate court may

not merely substitute its view for that of the jury, but must find that “ ‘the jury clearly lost Delaware County, Case No. 20 CAA 09 0039 8

its way and created such a manifest miscarriage of justice that the conviction must be

reversed and a new trial ordered.’ ” State v. Thompkins, supra, 78 Ohio St.3d at

387, quoting State v. Martin, 20 Ohio App.3d 172, 175, 485 N.E.2d 717, 720-721(1st Dist.

1983).

{¶24} Accordingly, reversal on manifest weight grounds is reserved for “the

exceptional case in which the evidence weighs heavily against the conviction.” Id.

{¶25} In the case sub judice, appellant was convicted of failing to notify of a

change in address in violation of R.C. 2950.05(F)(1). Such section provides that “No

person who is required to notify a sheriff of a change of address pursuant to division (A)

of this section or a change in vehicle information or identifiers pursuant to division (D) of

this section shall fail to notify the appropriate sheriff in accordance with that division.” An

offender is required to provide such notice at least twenty days prior to changing the

address. R.C. 2950.05(A).

{¶26} Failure to provide change of address is under R.C. 2950.05 is a strict liability

offense. See, e.g., State v. Blanton, 184 Ohio App.3d 611, 2009-Ohio-5334, 921 N.E.2d

1103, ¶ 21 (10th Dist.). Culpability is thus not required for a person to be found guilty.

R.C. 2901.21(B).

{¶27} In the case sub judice, there was testimony that appellant was living at the

Panhandle address where he had registered from October 1, 2019 to on or about October

20, 2019. He left the Panhandle address on or about October 20, 2019. After leaving the

Panhandle address, appellant, over the next 40-day period, stayed in a number of places,

including a car, with Christina Hair, with a man named Mike, and with Lindsay Wolford. Delaware County, Case No. 20 CAA 09 0039 9

{¶28} During the 40-day period, the only time that appellant tried to contact Valerie

Hooper was on November 6, 2019 when he left her a voice mail message. In the

message, appellant indicated that it was “clearly his fault. I should have called you” and

also indicated that he needed to reregister as homeless. Transcript at 258. Appellant did

not leave a callback number and did not come in to see Hooper the day after placing the

call.

{¶29} There was testimony that Hooper, other than the voice mail message, did

not hear from appellant between October 1, 2019 and his arrest in late November of 2019.

The trial court, as trier of fact, was in the best position to assess the credibility of the

witnesses. The trial court found that appellant failed to provide notice of change of

address to the Delaware County Sheriff during such time.

{¶30} R.C. 2950.05(G) states, in relevant part, as follows: (1) It is an affirmative

defense to a charge of a violation of division (F)(1) of this section that it was impossible

for the person to provide the written notice to the sheriff as required under division (A) of

this section because of a lack of knowledge, on the date specified for the provision of the

written notice, of a residence, school, institution of higher education, or place of

employment address change, and that the person provided notice of the residence,

school, institution of higher education, or place of employment address change to the

sheriff specified in division (A) of this section as soon as possible, but not later than the

end of the first business day, after learning of the address change by doing either of the

following:

{¶31} (a) The person provided notice of the address change to the sheriff specified

in division (A) of this section by telephone immediately upon learning of the address Delaware County, Case No. 20 CAA 09 0039 10

change or, if the person did not have reasonable access to a telephone at that time, as

soon as possible, but not later than the end of the first business day, after learning of the

address change and having reasonable access to a telephone, and the person, as soon

as possible, but not later than the end of the first business day, after providing notice of

the address change to the sheriff by telephone, provided written notice of the address

change to that sheriff.

{¶32} (b) The person, as soon as possible, but not later than the end of the first

business day, after learning of the address change, provided written notice of the address

change to the sheriff specified in division (A) of this section.

{¶33} The trial court found that appellant clearly had failed to provide written notice

of the address change to the Sheriff no later than the end of the first business day after

learning of the address change. The trial court further found, in relevant part, as follows:

{¶34} So the question is whether he provided notice of the address change to the

sheriff by telephone immediately. Or if not having reasonable access to a telephone at

that time, as soon as possible, but not later than the end of the first business day after

learning of the change and having reasonable access to a telephone, so long as the

person, not later than the next business day, after providing the telephone notice, then

also provides written notice. So if you’re going to take advantage of that, you can’t just

call; you have to call and then follow it up with a written notice the next day.

{¶35} It’s [appellant’s] burden to prove his affirmative defense by the

preponderance of the evidence. The only possible telephone notice that was provided

here was the 11-6 voicemail. There’s no other telephone voicemail or message or phone

call that was ever put into evidence. Delaware County, Case No. 20 CAA 09 0039 11

{¶36} I find that this is - - did not suffice to meet the requirements of the statute

because there was no information given in that voicemail about where [appellant] could

be found. And even if he had provided that, the statute again says he needs to provide

written notice to the sheriff no later than the next business day, which would have been

November 7th. That didn’t happen.

{¶37} I also - - We had discussion yesterday because I - - This part of the statute

I think is interesting, and I think it’s for situations like this. When is it reasonable to

conclude somebody has access to a telephone? I, in this instance, find that it’s

reasonable to conclude that [appellant], at some point over a 40-day period, would have

had access to a telephone, either whether it was from Ms. Hair, from Mike, from

somebody else, somebody he was staying with. Perhaps, I think most noteworthy here,

and what I find - - it kind of clicked in my head last night - - is [appellant] testified that he

wasn’t sure how to get from Panhandle down to the jail.

{¶38} But in 40 days, he went different places. The testimony was from his own

mouth that he was able to travel 20 miles up the road to Marion to stay with Ms. Hair, but

couldn’t, obviously, then make it two and a half miles, a tenth of that, down the road to

the jail to see Ms. Hooper.

{¶39} Transcript at 263-264.

{¶40} We note that at trial, both Logan Bowsher and Lindsay Wolford testified that

they would have let appellant use their phones if he had asked to borrow it. Sarah White,

who lived at the Panhandle address, also testified that she would have let appellant use

her phone if he asked. She further testified that her house was about two and a half miles

from the Delaware County Jail where Hooper’s office is located. Delaware County, Case No. 20 CAA 09 0039 12

{¶41} Based on the foregoing, we find that the trial court, as trier of fact, did not

lose its way in convicting appellant of failure to notify of a change in address in violation

of R.C. 2950.05(F)(1).

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

{¶43} Accordingly, the judgment of the Delaware County Court of Common Pleas

is affirmed.

By: Baldwin, P.J.

Gwin, J. and

Wise, Earle, J. concur.