State v. Gegen

2022 Ohio 2462

• Court: Ohio Court of Appeals
• Decided: July 18, 2022
• Docket: 2021-L-121
• Status: Published

Opinion

[Cite as State v. Gegen, 2022-Ohio-2462.]

IN THE COURT OF APPEALS OF OHIO ELEVENTH APPELLATE DISTRICT LAKE COUNTY

STATE OF OHIO, CASE NO. 2021-L-121

Plaintiff-Appellee, Criminal Appeal from the -v- Court of Common Pleas

TREVOR K. GEGEN, Trial Court No. 2021 CR 000550 Defendant-Appellant.

OPINION

Decided: July 18, 2022 Judgment: Affirmed

Charles E. Coulson, Lake County Prosecutor, Teri R. Daniel, Assistant Prosecutor, and Haley L. Gold, Assistant Prosecutor, Lake County Administration Building, 105 Main Street, P.O. Box 490, Painesville, OH 44077 (For Plaintiff-Appellee).

Allison S. Breneman, P.O. Box 829, Willoughby, OH 44096 (For Defendant-Appellant).

JOHN J. EKLUND, J.

{¶1} Appellant, Trevor Gegen, appeals his conviction for Failure to Notify

Change of Address, a second-degree felony, from the Lake County Court of Common

Pleas. Appellant raises two assignments of error and argues that his conviction is not

supported by sufficient evidence and that it is against the manifest weight of the evidence.

{¶2} After review of the record and the applicable case law, we find appellant’s

assignments of error to be without merit. Appellant’s conviction was supported by

sufficient evidence that satisfied each element of the offense. Further, the conviction was not against the manifest weight of the evidence because the greater amount of credible

evidence supported the jury’s finding of guilt.

{¶3} The judgment of the Lake County Court of Common Pleas is affirmed.

Substantive and Procedural History

{¶4} In June 2021, the Lake County Grand Jury indicted appellant for Failure to

Notify Change of Address, a second-degree felony in violation of R.C. 2950.05(F)(1);

Failure to Notify Change of Vehicle Registration, a second-degree felony in violation of

R.C. 2950.05(F)(1); and Tampering with Records, a third-degree felony in violation of

R.C. 2913.42(A)(1).

{¶5} At jury trial, the parties stipulated that the most serious sexually oriented

offense that was the basis of appellant’s sex offender registration requirement was a

felony of the second degree. The parties further stipulated that he had a prior conviction

for Failure to Register Change of Address in case number 14-CR-0000090457.

{¶6} Sergeant Robert Harps of the Lake County Sheriff’s Office, in his capacity

in the Sex Offender Registration Notification (SORN) division, testified that he

investigated appellant. He said that when a sex offender first moves into Lake County,

they must complete paperwork with the Lake County Sheriff’s Office. Harps said that

when appellant moved into Lake County, he completed this registration. The State

introduced appellant’s initial offender registration form with the Lake County Sheriff’s

Office. On that form, appellant listed his address as in Wickliffe, Ohio in Lake County

beginning August 15, 2020. Appellant did not give a secondary address.

{¶7} Based on his offender tier level, appellant was also required to report every

90 days to the Sheriff’s Office to confirm his address. On March 15, 2021, appellant

Case No. 2021-L-121 completed this 90-day registration form. On that form, he indicated that his address

remained at the Wickliffe residence with no secondary residence.

{¶8} Harps testified that an investigation into appellant’s residence began on

March 24, 2021, when he did a compliance check on appellant. During the check, Harps

observed that none of appellant’s personal belongings were at the Wickliffe residence.

{¶9} The next day, Harps called appellant and spoke to him on the phone and

recorded the call. Appellant stated that he had not moved out. Harps then drove to the

Wickliffe residence and found appellant at the residence. He spoke to appellant in person,

Mirandized him, and asked him about his current address. Harps recorded this

conversation, and it was admitted into evidence.

{¶10} During the conversation, appellant admitted that he had moved out of the

Wickliffe residence on February 1, 2021. He stated that he moved to Jefferson, Ohio in

Ashtabula County that same day. Appellant indicated that he had moved in with his friend,

Emma Orvos, and spent approximately one month living there. After that, he admitted

that he had been kicked out of the Ashtabula residence and lived in his car, parking

primarily in a Wal-Mart parking lot in Girard, Ohio in Trumbull County. Finally, he admitted

that he lied on the registration form when he stated that his residence was still in Wickliffe

on March 15, 2021. At no point between February 1, 2021, when appellant moved out of

the Wickliffe residence and March 25, 2021, when Harps interviewed appellant, did he

notify the Lake County Sheriff’s Office of his change of address.

{¶11} Olivia Bacher testified that she and her boyfriend allowed appellant to live

with them at the Wickliffe residence starting in August 2020. She said that in February

Case No. 2021-L-121 2021, appellant moved out after her and her boyfriend asked him to leave. She said that

between February and March, appellant did not live at the Wickliffe residence.

{¶12} Emma Orvos next testified that she lived in Jefferson, Ohio in Ashtabula

County. She said that in the beginning of February 2021, appellant asked to move into

her residence. She said that he did not bring a lot of his personal belongings beyond

clothes, a tv and gaming console, and some nightstands. She said that during this time

he did not stay with her every day. She said that he moved out by the beginning of March

2021.

{¶13} After the State’s case in chief, appellant moved for a Crim.R. 29 motion of

acquittal, which the trial court denied. The jury found appellant guilty on all counts. Counts

Two and Three merged with Count One for sentencing purposes and the trial court

sentenced appellant to an indefinite prison term of three years to four and one-half years.

Appellant timely appealed and raised two assignments of error

Assignments of Error and Analysis

{¶14} Appellant’s assignments of error state:

{¶15} “[1.] The Jury found, against the manifest weight of the evidence, that the

Appellant committed the acts alleged in the indictment.”

{¶16} “[2.] The evidence was not legally sufficient to sustain a guilty verdict.”

Sufficiency of the evidence:

{¶17} “‘Sufficiency’ is a term of art meaning that legal standard which is applied to

determine whether the case may go to the jury or whether the evidence is legally sufficient

to support the jury verdict as a matter of law.” Black's Law Dictionary (6 Ed.1990) 1433.

See, also, Crim.R. 29(A).” State v. Thompkins, 78 Ohio St. 3d 380, 386, 678 N.E.2d 541

Case No. 2021-L-121 (1997). The appellate court’s standard of review for sufficiency of evidence is to

determine, after viewing the evidence in a light most favorable to the prosecution, whether

a rational trier of fact could find the essential elements of the crime proven beyond a

reasonable doubt. State v. Jenks, 61 Ohio St. 3d 259, 574 N.E.2d 492 (1991), paragraph

two of the syllabus.

{¶18} When evaluating the adequacy of the evidence, we do not consider its

credibility or effect in inducing belief. Thompkins at 387. Rather, we decide whether, if

believed, the evidence can sustain the verdict as a matter of law. Id. This naturally entails

a review of the elements of the charged offense and a review of the State’s evidence.

State v. Richardson, 150 Ohio St.3d 554, 2016-Ohio-8448, 84 N.E.3d 993, ¶ 13.

{¶19} In this case, appellant was convicted of one count of Failure to Notify

Change of Address, in violation of R.C. 2950.05(F)(1), which provides: “No person who

is required to notify a sheriff of a change of address pursuant to division (A) of this section

* * * shall fail to notify the appropriate sheriff in accordance with that division.”

{¶20} Division (A) states that an offender must provide written notice to the sheriff

at least 20 days prior to changing his residence address. Further, “[i]f a residence

address is not to a fixed address, the offender * * * shall include in that notice a detailed

description of the place or places at which the offender * * * intends to stay and, not later

than the end of the first business day immediately following the day on which the person

obtains a fixed residence address, shall provide that sheriff written notice of that fixed

residence address.” R.C. 2950.05(A).

{¶21} The evidence demonstrates that the State put forth sufficient evidence to

sustain the jury verdict as a matter of law. The parties stipulated that appellant was a

Case No. 2021-L-121 convicted sex offender and was therefore required to notify a sheriff of a change of

address pursuant to R.C. 2950.05(A). Next, the State admitted into evidence appellant’s

August 2020 registration with the Lake County Sheriff’s Office stating that his address

was the Wickliffe residence. As of March 15, 2021, appellant stated on his regular 90-day

registration form that he continued to reside at the Wickliffe residence.

{¶22} Harps testified that he talked to appellant on March 25, 2021. The State

introduced the recording of that conversation. In that conversation, appellant admitted

that he had moved out of the Wickliffe residence on or around February 1, 2021, and that

he moved to Jefferson, Ohio in Ashtabula County. He said that he lived there for

approximately one month and then became homeless and lived in his car staying at a

Wal-Mart parking lot in Girard, Ohio in Trumbull County. Appellant did not provide written

notice of his change of address as required by R.C. 2950.05(A).

{¶23} In viewing these facts in a light most favorable to the prosecution, the State

presented sufficient evidence that appellant changed his address from the registered

Wickliffe residence and that he failed to notify a sheriff of the change of address in

violation of R.C. 2950.05(F).

{¶24} Accordingly, appellant’s second assignment of error is without merit.

Manifest Weight of the Evidence:

{¶25} Appellant also argues that his conviction was against the manifest weight

of the evidence. “Although a court of appeals may determine that a judgment of a trial

court is sustained by sufficient evidence, that court may nevertheless conclude that the

judgment is against the weight of the evidence.” Thompkins, 78 Ohio St. 3d at 389. Weight

of the evidence concerns “the inclination of the greater amount of credible evidence,

Case No. 2021-L-121 offered in a trial, to support one side of the issue rather than the other. It indicates clearly

to the jury that the party having the burden of proof will be entitled to their verdict, if, on

weighing the evidence in their minds, they shall find the greater amount of credible

evidence sustains the issue which is to be established before them.” (Emphasis sic.) Id.

at 386, quoting Black’s Law Dictionary 1594 (6th Ed.1990).

{¶26} “When a court of appeals reverses a judgment of a trial court on the basis

that the verdict is against the weight of the evidence, the appellate court sits as a

‘thirteenth juror’ and disagrees with the factfinder’s resolution of the conflicting testimony.”

Id.

{¶27} The reviewing court “weighs the evidence and all reasonable inferences,

considers the credibility of witnesses and determines whether in resolving conflicts in the

evidence, the jury clearly lost its way and created such a manifest miscarriage of justice

that the conviction must be reversed and a new trial ordered. The discretionary power to

grant a new trial should be exercised only in the exceptional case in which the evidence

weighs heavily against the conviction.” Id. at 387, quoting State v. Martin, 20 Ohio App.3d

172, 175, 485 N.E.2d 717 (1st Dist.1983).

{¶28} The trier of fact is the sole judge of the weight of the evidence and the

credibility of the witnesses. State v. Landingham, 11th Dist. Lake No. 2020-L-103, 2021-

Ohio-4258, ¶ 22, quoting State v. Antill, 176 Ohio St. 61, 67, 197 N.E.2d 548 (1964). The

trier of fact may believe or disbelieve any witness in whole or in part, considering the

demeanor of the witness and the manner in which a witness testifies, the interest, if any

of the outcome of the case and the connection with the prosecution or the defendant. Id.,

quoting Antil at 67. This court, engaging in the limited weighing of the evidence introduced

Case No. 2021-L-121 at trial, must defer to the weight and factual findings made by the jury. State v. Brown,

11th Dist. Trumbull No. 2002-T-0077, 2003-Ohio-7183, ¶ 52, citing Thompkins at 390 and

State v. DeHass, 10 Ohio St.2d 230, 227 N.E.2d 212 (1967), paragraph two of the

syllabus.

{¶29} A finding that a judgment is supported by the manifest weight of the

evidence necessarily means the judgment is supported by sufficient evidence. State v.

Arcaro, 11th Dist. Ashtabula No. 2012-A-0028, 2013-Ohio-1842, ¶32.

{¶30} A failure to provide change of address 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). Here, appellant has not raised the affirmative defense of impossibility. See

R.C. 2950.05(G).

{¶31} Appellant has focused his challenge on two factors he believes demonstrate

his conviction was against the manifest weight of the evidence: the certainty of the

evidence and fragmentary evidence. See State v. Mattison, 23 Ohio App.3d 10, 14, 490

N.E.2d 926 (8th Dist.1985) (delineating eight guidelines to consider in weighing

evidence).

{¶32} Appellant argues that there is no certain proof that he failed to report a

change of address as required. He notes that Orvos testified that appellant did not stay

every day at her Ashtabula residence. She also said that appellant did not move many

personal belongings into the residence. Appellant suggests that this would indicate that

he still formally lived at the Wickliffe residence and only occasionally visited Orvos in

Ashtabula.

Case No. 2021-L-121 {¶33} Appellant’s arguments go to the credibility of the witnesses. “It is well-settled

that when assessing the credibility of witnesses, ‘[t]he choice between the credibility of

witnesses and their conflicting testimony rests solely with the finder of fact and an

appellate court may not substitute its own judgment for that of the finder of fact.’ * * *

Furthermore, if the evidence is susceptible to more than one interpretation, a reviewing

court must interpret it in a manner consistent with the verdict.” State v. Mugrage, 11th

Dist. Portage No. 2020-P-0066, 2021-Ohio-4136, ¶ 142, quoting Seasons Coal v.

Cleveland, 10 Ohio St.3d 77, 461 N.E.2d 1273 (1984).

{¶34} Appellant himself admitted to Harps that he moved out of the Wickliffe

residence in early February 2021, subsequently left the Ashtabula residence, and was

homeless and living out of his car in a Wal-Mart parking lot in Girard, Ohio.

{¶35} Bacher testified that appellant moved out of the Wickliffe residence in the

beginning of February 2021. Orvos similarly testified that appellant moved in with her at

the Ashtabula residence in February 2021. Although Orvos was not specific in stating

which days appellant stayed with her, she unequivocally testified that appellant moved

into the Ashtabula residence and that he resided there for approximately one month.

{¶36} Under R.C. 2950.05, appellant was required to notify a sheriff of changes

to his address by virtue of his prior conviction and he did not do so. The greater weight of

the evidence shows “clearly to the jury that the party having the burden of proof” was

entitled to its verdict. See Thompkins, 78 Ohio St. 3d at 386. This is not the extraordinary

case where the “jury clearly lost its way and created such a manifest miscarriage of justice

that the conviction must be reversed and a new trial ordered.” See Id. at 387.

{¶37} Accordingly, appellant’s first assignment of error is without merit.

Case No. 2021-L-121 {¶38} For the foregoing reasons, the judgment of the Lake County Court of

Common Pleas is affirmed.

CYNTHIA WESTCOTT RICE, J.,

MARY JANE TRAPP, J.,

concur.

Case No. 2021-L-121