[Cite as State v. Mosley, 2015-Ohio-3597.] IN THE COURT OF APPEALS FIRST APPELLATE DISTRICT OF OHIO HAMILTON COUNTY, OHIO
STATE OF OHIO, : APPEAL NO. C-140633 TRIAL NO. B-1404312 Plaintiff-Appellant, :
vs. : O P I N I O N.
ROBERT MOSLEY, :
Defendant-Appellee. :
Criminal Appeal From: Hamilton County Court of Common Pleas
Judgment Appealed From Is: Affirmed
Date of Judgment Entry on Appeal: September 4, 2015
Joseph T. Deters, Hamilton County Prosecuting Attorney, and Paula E. Adams, Assistant Prosecuting Attorney, for Plaintiff-Appellant,
Raymond T. Faller, Hamilton County Public Defender, and Marguerite Slagle, Assistant Public Defender, for Defendant-Appellee.
Please note: this case has been removed from the accelerated calendar. OHIO FIRST DISTRICT COURT OF APPEALS
FISCHER, Judge. {¶1} Plaintiff-appellant state of Ohio has appealed the trial court’s
judgment, dismissing the indictment against defendant-appellee Robert Mosley for
failing to provide notice of a change of address in violation of former R.C. 2950.05.
The court determined that Mosley’s initial classification as a sexually oriented
offender violated his right to due process, and therefore, Mosley had no duty to
register. We affirm the trial court’s judgment.
Facts and Procedure
{¶2} In 1995, Mosley was convicted of robbery and abduction. The
indictment did not allege a sexual motivation or include the ages of the victims. He
was sentenced to concurrent terms of imprisonment of three to 15 years for the
robbery and two to ten years for the abduction. Prior to his release from prison in
November 2000, Mosley was informed by his case manager that he would be
required to register as a sexually oriented offender because the abduction was
considered a sex offense. Apparently, some unknown person in the prison system
had determined that the victims of the abduction had been minors, and therefore,
Mosley was required to register as a sexually oriented offender.
{¶3} On August 8, 2014, Mosley was indicted for failing to provide notice of
an address change. Mosley filed a motion to dismiss the indictment because (1) the
factual finding that Mosley had committed a sex offense based on the ages of his
victims was made by someone in the prison system and not a court, violating the
separation-of-powers doctrine, and (2) abduction without a sexual motivation was
not a sex offense, and requiring Mosley to register as a sex offender violated his state
and federal constitutional rights to due process.
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{¶4} The trial court granted Mosley’s motion to dismiss the indictment,
finding that requiring Mosley to register as a sexually oriented offender for abduction
with no sexual motivation violated his right to due process. The court also concluded
that the child-victim-offender statute did not apply to Mosley because he was not
incarcerated on its effective date and he did not have a lawful duty to register when
the law became effective. The court did not address the separation-of-powers issue.
The state has appealed.
{¶5} After reviewing the record, we ordered the parties to file supplemental
briefs addressing whether Mosley’s duty to register had expired in 2010, ten years
after he had been released from prison and notified of his duty to register as a
sexually oriented offender. The parties filed a joint supplemental brief representing
that due to various incarcerations and the tolling provision in former R.C.
2950.07(D), Mosley was scheduled to register until May 14, 2016.
Analysis
{¶6} The state’s sole assignment of error alleges that the trial court erred in
dismissing the indictment because, as of July 31, 2003, Mosley had a duty to register
as a child-victim offender under Megan’s Law. The Megan’s Law version of R.C.
2950.041(A)(1)(c) provided for the continuation of registration duties when the
offense was defined under prior law as a sexually oriented offense, but was changed
to a child-victim-oriented offense under the 2003 amendments to Megan’s Law. The
state argues that because Mosley had a duty to register as a sexually oriented
offender under prior law, his duty was continued after the 2003 amendments
changed that offense to a child-victim-oriented offense.
{¶7} Mosley argues that his classification under prior law as a sexually
oriented offender for abduction, which was based solely on the ages of his victims as
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determined by a prison official, and not on any finding of a sexual motivation,
violated the separation-of-powers doctrine and his right to due process of law.
{¶8} Mosley committed his abduction offense in 1995. In 1997, Megan’s
Law became effective. The 1997 Megan’s Law version of R.C. 2950.01(D)(2) defined
abduction of a victim under the age of 18 as a sexually oriented offense. Because
Mosley was incarcerated at the time Megan’s Law became effective, he was subject to
its registration provisions. See former R.C. 2950.04(A)(1)(a). But the trial court in
Mosley’s case had not made any finding about the ages of the victims, presumably
because at the time of trial, the age of the victim was not an element of the crime of
abduction. Apparently, shortly before Mosley was released from prison in 2000, a
prison official made a determination that Mosley’s victims had been under the age of
18 and notified him of his duty to register as a sexually oriented offender.
Due Process
{¶9} Mosley argues that the trial court was correct in finding that requiring
him to register as a sexually oriented offender for abduction with no sexual
motivation violated his right to due process.
{¶10} In State v. Golden, 1st Dist. Hamilton Nos. C-030460 and C-030461,
2004-Ohio-2276, ¶ 26-27, we noted,
The legislative purpose behind R.C. Chapter 2950 is to protect the
public from sex offenders by providing the public with adequate notice
and information about the offenders. But the statute’s purpose may
not be served, as applied to an individual offender, by its automatic
labeling of an offender as a sexually-oriented offender where the
“sexually oriented offense” requires no proof of sexual purpose or
motivation. Accordingly, while a defendant is not constitutionally
entitled to a classification hearing to determine whether he is a
4 OHIO FIRST DISTRICT COURT OF APPEALS
sexually-oriented offender, the defendant may challenge the statute’s
constitutionality as applied to him where the “sexually oriented
offense” is not sexually motivated.
Indeed, some Ohio courts have held that the application of R.C.
Chapter 2950’s requirement that an individual be classified as a
sexually-oriented offender, where the offenses are committed without
sexual motivation, is unreasonable and arbitrary, and bears no rational
relationship to the statute’s purpose.
(Internal citations omitted.)
{¶11} In State v. Washington, 11th Dist. Lake No. 99-L-015, 2001 Ohio App.
LEXIS 4980 (Nov. 2, 2001), Washington pleaded guilty to abduction of his former
girlfriend and her minor daughter. Although the abduction of the minor had not
been motivated by any sexual purpose, the trial court “reluctantly” classified
Washington as a sexually oriented offender. The Eleventh Appellate District held
that Washington’s classification as a sexually oriented offender was unconstitutional,
because there was no rational relationship between the stated legislative intent of
Ohio’s Megan’s Law, the legitimate governmental interest of protecting the public
from sex offenders, and labeling Washington as a sex offender when there was no
evidence that his offense had been motivated by a sexual purpose. Washington at
*12-14. “[U]nless there is some evidence of sexual motivation, there is no rational
basis for categorizing an abduction of a victim who is less than eighteen years old as
being a sexually oriented offense. * * * Absent a showing that the abduction was
motivated for a sexual purpose, appellant’s classification as a sexually oriented
offender cannot stand.” Id. at *14. See State v. Hickman, 11th Dist. Portage No.
2003-P-0087, 2004-Ohio-3929 (noting that the statute had been amended to
require that the abduction of a minor be committed with a sexual motivation to
5 OHIO FIRST DISTRICT COURT OF APPEALS
qualify as a sexually oriented offense, and holding that there is no rational basis for
classifying abduction of a minor without a sexual motivation as a sexually oriented
offense).
{¶12} In State v. Barksdale, 2d Dist. Montgomery No. 19294, 2003-Ohio-43,
Barksdale pleaded guilty to four counts of kidnapping. All victims were minors. The
trial court classified Barksdale as a sexually oriented offender. The parties stipulated
that Barksdale had committed the offenses without any sexual motivation or
purpose. The Second Appellate District held that labeling Barksdale as a sexually
oriented offender and requiring him to register violated due process because it bore
“no rational relationship to the purposes of the statute and is unreasonable and
arbitrary.” Barksdale at ¶ 3. See State v. Young, 2d Dist. Montgomery Nos. 19472
and 19473, 2003-Ohio-2205 (classifying an offender as a sexually oriented offender
where the abduction-of-a-minor offenses were committed without any sexual
motivation or purpose violates due process).
{¶13} The Eighth Appellate District, in State v. Gooden, 8th Dist. Cuyahoga
No. 82621, 2004-Ohio-2699, adopted the reasoning of the Second District and held
that where the kidnapping of the 14-year-old victim involved no sexual motivation,
classifying Gooden as a sexually oriented offender violated due process.
We agree with the Second District and find that the application of the
statutory requirement that Gooden be classified as a sexually oriented
offender, in a case in which there was no evidence that the offense was
committed with any sexual motivation or purpose, is unreasonable and
arbitrary, bears no rational relationship to the purposes of the statute,
and, thus, offends the Due Process Clauses of both the Ohio and
United States Constitutions.
Gooden at ¶ 16.
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{¶14} In State v. Small, 162 Ohio App.3d 375, 2005-Ohio-3813, 833 N.E.2d
774 (10th Dist.), Small had been found guilty in 1997 of kidnapping a minor and
sentenced to five years in prison. There was no evidence that the kidnapping had
been committed with any sexual motivation or purpose. In 2002, Small was indicted
for violations of former R.C. 2950.05 and 2950.06, which required a sex offender to
provide notice of an address change and to verify his current address. The Tenth
Appellate District held that Small’s challenge to his classification through a motion to
dismiss the indictment had been proper and timely, and that the trial court did not
err in dismissing the indictment because, in the absence of evidence that Small had
committed the kidnapping of the minor with a sexual motivation, classifying him as a
sexually oriented offender was “not rationally related to a legitimate state interest as
applied to defendant under former R.C. Chapter 2950” and there was “no rational
basis to subject him to registration requirements and prosecution for failure to
register under former R.C. Chapter 2950.” Accordingly, the Tenth District
concluded, “[T]he trial court did not err in determining that the denomination of
defendant as a ‘sexually oriented offender’ lacked a rational basis under substantive
due process as applied to defendant.” Small at ¶ 29-30.
{¶15} We agree with the reasoning of the Eleventh, Second, Eighth and
Tenth Appellate Districts and hold that requiring Mosley to register as a sexually
oriented offender in the absence of any evidence that he had committed the
abduction with a sexual motivation violates due process. Further, we hold that
Mosley is not subject to the child-victim-offender statute, because he was not
incarcerated on its effective date, and he did not have a lawful duty to register when
the law became effective.
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{¶16} Because we have held that requiring Mosley to register as a sexually
oriented offender violates due process, we need not address Mosley’s separation-of-
powers argument.
Conclusion
{¶17} The assignment of error is overruled. The judgment of the trial court,
dismissing the indictment against Mosley for failing to notify of an address change, is
affirmed.
Judgment affirmed.
HENDON, P.J., concurs. DEWINE, J., dissents.
DEWINE, J., dissenting.
{¶18} I see things quite differently than the majority.
{¶19} Despite the fact that Mosley was convicted of violating his registration
requirements twice previously, the majority finds on substantive-due-process
grounds that he never had a duty to register, and therefore, upholds the trial court’s
dismissal of the current indictment against him. In my view, this conclusion rests on
two missteps: (1) allowing Mosley to challenge his classification as a sex offender in
a case in which he is being prosecuted under the child-victim-offender classification,
and (2) adopting an expansive view of substantive due process that goes well beyond
the contours set forth by the United States and Ohio Supreme Courts.
I. Mosley is Being Prosecuted for Failure to Register as a Child- Victim Offender
{¶20} The majority opinion addresses in some detail the constitutionality of
requiring Mosley to register as a sex offender. It concludes that requiring him to do
so violates the substantive component of the Due Process Clause. It is this
conclusion that I will take issue with in Part II of this dissent. But before we get to
8 OHIO FIRST DISTRICT COURT OF APPEALS
the constitutional issue, there is a statutory issue that needs to be addressed, which,
in my view, is dispositive of this appeal.
{¶21} Mr. Mosley was not prosecuted for failure to register as a sex offender.
He was prosecuted for failure to register as a child-victim offender. When Mosley
was released from prison in 2000, he was required to register as a sexually oriented
offender under the version of Megan’s Law in effect at the time because he had been
convicted of the abduction of children under the age of 18. In 2003, Megan’s Law
was amended to change the classification of individuals such as Mosley to “child-
victim offender.” It is for a violation of his registration requirements as a child-
victim offender that Mosley was prosecuted in this case.
{¶22} Thus, a threshold question is whether Mosley can challenge the
constitutionality of requiring him to register as a sex offender when he is not
currently required to register as a sex offender and is not being prosecuted for
violating any sex-offender-registration requirements. The majority devotes a single
conclusory sentence to this question at the end of its opinion: “Further, we hold that
Mosley is not subject to the child-victim-offender statute because he was not
incarcerated on the effective date, and he did not have a lawful duty to register when
the law became effective.” I don’t find it nearly so simple.
{¶23} The 2003 child-victim-offender amendments provided that they
applied to “an offender who, immediately prior to the effective date of [the] section,
was required to register as a result of the conviction of or plea of guilty” to the offense
for which Mosley was convicted. Former R.C. 2950.041(A)(1)(c), effective July 31,
2003. The registration duty was “considered * * * a continuation of the duty
imposed upon the offender prior to the effective date” of the amendments. Id. Thus,
9 OHIO FIRST DISTRICT COURT OF APPEALS
the question is whether the child-victim-offender legislation applies to Mosley
because he was “required to register” when the 2003 amendments went into effect.
{¶24} Certainly the legislature intended to encompass offenders like Mosley
within the statutory language. The legislation is specifically aimed at those who
commit certain crimes against children—abduction, kidnapping without a sexual
motivation, unlawful restraint, child enticement—regardless of a sexual motivation.
See former R.C. 2950.01(S), effective July 31, 2003. Indeed, those who commit a
“sexually violent offense” are excluded from the child-victim-offender category and
instead remain under the sexually-oriented-offense categorization. See former R.C.
2950.01(D), effective July 31, 2003.
{¶25} One conceivable response is that regardless of what the legislature
intended, Mosley was not “required” to register because the statute was
unconstitutional as applied to him. But there is nothing in our record that bears that
out. We don’t have any facts before us—save the arguments of counsel—about his
initial offense. The cases upon which the majority relies deal with as-applied
challenges to the statute. Here, Mr. Mosley never raised a challenge to his
classification during the time he was classified as a sexually oriented offender. I fail
to see the logic of allowing him to raise such a challenge now when he is no longer
subject to registration as a sexually oriented offender.
{¶26} In my view, since the statutory language demonstrates that the
legislature intended to classify Mosley as a child-victim offender, the only remaining
question is whether it could constitutionally do so. The United States Supreme Court
has held that a state may constitutionally apply a civil remedial statute like Megan’s
Law to offenders who committed their crimes and were released from prison prior to
the effective date of the statute. Smith v. Doe, 538 U.S. 84, 105-106, 123 S.Ct. 1140,
10 OHIO FIRST DISTRICT COURT OF APPEALS
155 L.Ed.2d 164 (2003). While the Ohio Supreme Court has not directly addressed
the issue of application of a registration scheme to an offender who was released
from prison prior to the effective date of the statute, it did find that the 2003
amendments to Megan’s Law violated neither the retroactivity clause of the Ohio
Constitution nor the Ex Post Facto Clause of the United States Constitution. State v.
Ferguson, 120 Ohio St.3d 7, 2008-Ohio-4824, 896 N.E.2d 110, ¶ 40 and 43. Thus,
regardless of whether Mosley could have mounted an unconstitutional-as-applied
challenge prior to the 2003 amendments, the legislature was on solid constitutional
footing in classifying him as a child-victim offender in 2003.
{¶27} Under the plain language of its enactment, the legislature classified
Mosley as a child-victim offender in 2003. It acted within its constitutional powers
when it did so. The state should be able to prosecute him for a violation of his duties
under the 2003 enactment.
II. Substantive Due Process
{¶28} By all rights, the analysis ought to stop with the first section. Because
Mosley had a duty to register under the 2003 amendments, there is no need to
speculate as to whether a substantive-due-process challenge to his previous
registration requirement might have been successful. But because the majority
hinges its opinion on a substantive-due-process violation, I will address the issue.
{¶29} The Due Process Clause of the Fourteenth Amendment protects
against the deprivation of life, liberty or property without due process of the law.
While its text seems to be limited to matters of procedure, it has been held to contain
a substantive component that forbids certain government action regardless of the
procedures employed. See Daniels v. Williams, 474 U.S. 327, 331, 106 S.Ct. 662, 88
L.Ed.2d 662 (1986). But we have been cautioned that we must be “reluctant to
11 OHIO FIRST DISTRICT COURT OF APPEALS
expand the concept of substantive due process because guideposts for responsible
decisionmaking in this unchartered area are scarce and open-ended.” Washington v.
Glucksberg, 521 U.S. 702, 720, 117 S.Ct. 2258, 138 L.Ed.2d 771 (1997), citing Collins
v. Harker Hts., 503 U.S. 115, 125, 112 S.Ct. 1061, 117 L.Ed.2d 261 (1992).
{¶30} “The first (and often last) issue in this area is the proper
characterization of the individual’s asserted right.” Blau v. Fort Thomas Pub. School
Dist., 401 F.3d 381, 393 (6th Cir.2005). Government actions that infringe on a
fundamental right are subject to strict scrutiny, while those that do not need only be
rationally related to a legitimate government interest. Id. See State v. Lowe, 112
Ohio St.3d 507, 2007-Ohio-606, 861 N.E.2d 512.
{¶31} The Ohio Supreme Court has held that “there is nothing in [Megan’s
Law] that infringes upon any * * * fundamental constitutional right that has been
recognized by the United States Supreme Court.” State v. Williams, 88 Ohio St.3d
513, 531, 728 N.E.2d 342 (2000). Thus, the enactment is only subject to rational-
basis review.
{¶32} Under traditional constitutional norms of jurisprudence, the
determination of the standard of review as rational basis should be largely the end of
the matter. Plainly, the legislature had a rational basis for subjecting those who
abduct children to registration and notification requirements. It is not irrational to
assume that most citizens would like to know if a child abductor lived next door.
And it is certainly not irrational to want to keep track of individuals who commit
such deeds.
{¶33} Nonetheless, the majority applies what it says is rational-basis review
to find the statute unconstitutional. In doing so, it relies upon our decision in
Golden and case law from other districts that have found the statute unconstitutional
12 OHIO FIRST DISTRICT COURT OF APPEALS
as applied to particular offenders under rational-basis review. But in reality, the
scrutiny applied by the majority and the other districts goes well beyond rational-
{¶34} Under well-established norms, “a state has no obligation to produce
evidence to sustain the rationality of a statutory classification.” Columbia Gas
Transm. Corp. v. Levin, 117 Ohio St.3d 122, 2008-Ohio-511, 882 N.E.2d 400, ¶ 91.
Rather, “[t]he party challenging the constitutionality of a statute ‘bears the burden to
negate every conceivable basis that might support the legislation.’ ” Pickaway Cty.
Skilled Gaming, L.L.C. v. Cordray, 127 Ohio St.3d 104, 2010-Ohio-4908, 936 N.E.2d
944, quoting Columbia Gas at ¶ 91. See Lyons v. Limbach, 40 Ohio St.3d 92, 532
N.E.2d 106 (1988); Fabrey v. McDonald Village Police Dept., 70 Ohio St.3d 351, 639
N.E.2d 31 (1994); Logue v. Leis, 169 Ohio App.3d 356, 2006-Ohio-5597, 862 N.E.2d
900 (1st Dist.). See also Madden v. Kentucky, 309 U.S. 83, 60 S.Ct. 406, 84 L.Ed.
590 (1940).
{¶35} The cases cited by the majority fail to apply this standard. As the
majority notes, the basic premise of the decisions was that the stated legislative
purpose of the act—protecting the public from sex offenders—was not served by
legislation that required registration of those not shown to have acted with a sexual
motivation. Golden, 1st Dist. Hamilton Nos. C-030460 and C-030461, 2004-Ohio-
2276, at ¶ 26-27; Barksdale, 2d Dist. Montgomery No. 19294, 2003-Ohio-43, at ¶ 3;
Washington, 11th Dist. Lake No. 99-L-015, 2001 Ohio App. LEXIS 4980, at *12-14.
{¶36} But the United States Supreme Court has rejected the notion that
rational-basis review is accomplished by a judicial weighing of whether legislation, in
fact, achieves the legislature’s stated purpose. In the words of the Supreme Court,
“because we never require a legislature to articulate its reasons for enacting a statute,
13 OHIO FIRST DISTRICT COURT OF APPEALS
it is entirely irrelevant for constitutional purposes whether the conceived reason for
the challenged [infringement] actually motivated the legislature.” Fed.
Communications Comm. v. Beach Communications, Inc., 508 U.S. 307, 315, 113
S.Ct. 2096, 124 L.Ed.2d 211 (1993). “Where * * * there are plausible reasons for
[legislative] action, our inquiry is at an end.” United States RR. Retirement Bd. v.
Fritz, 449 U.S. 166, 179, 101 S.Ct. 453, 66 L.Ed.2d 368 (1980).
{¶37} The majority cannot seriously argue that it was irrational for the
legislature to set up a registration and notification system for those who commit
crimes against children. Rather, what it seems to think is irrational is that the
legislature included these offenders within a broader scheme to which it affixed the
label “sex offender.” But for purposes of analyzing whether infringements of liberty
are constitutional, the pertinent inquiry is into the nature of the infringements into
the individual’s liberty, not on the nomenclature attached. What matters under the
Fourteenth Amendment is the minor infringement occasioned by requiring the
offender to register with the authorities. This is the liberty interest protected by the
Fourteenth Amendment, which is subject to rational-basis review. The label
attached is not. The Due Process Clause does not protect against being called a
name.
{¶38} And even if we were to address the rationality of the sweeping up of
those who commit crimes against children in a larger sex offender classification, the
minimal requirements of rational-basis review are certainly satisfied. The legislature
could well presume that some significant number of those who committed crimes
against children did so with a sexual motivation. It also could rationally consider the
high risk of sexual exploitation of child victims in making the classification. See
State v. Bowman, 10th Dist. Franklin No. 02AP-1025, 2003-Ohio-5341, ¶ 40. And it
14 OHIO FIRST DISTRICT COURT OF APPEALS
could fairly conclude that even for those who acted with no provable sexual
motivation, the notification and registration requirements still served important
public purposes. We are reminded, “the problems of government are practical ones
and may justify, if they do not require, rough accommodations—illogical, it may be,
and unscientific." Id. at 175, quoting Metropolis Theatre Co. v. Chicago, 228 U.S. 61,
69-70, 33 S.Ct. 441, 57 L.Ed. 730 (1913).
{¶39} At bottom, the majority opinion and the cases cited therein seem to
rest on the bald notion that it was a bad idea to sweep those who commit crimes
against children up in a “sex-offender” registration scheme when they have not been
shown to be sex offenders. And it may well have been a bad idea. The legislature
certainly had a better one when it changed the moniker to child-victim offender. But
not all bad ideas are unconstitutional. Rational-basis review “is not a license for
courts to judge the wisdom, fairness, or logic of legislative choices.” Beach
Communications at 313. “Nor does it authorize ‘the judiciary [to] sit as a
superlegislature to judge the wisdom or desirability of legislative policy
determinations made in areas that neither affect fundamental rights nor proceed
along suspect lines.’ ” Heller v. Doe, 509 U.S. 312, 319, 113 S.Ct. 2637, 125 L.Ed.2d
257 (1993), quoting New Orleans v. Dukes, 427 U.S. 297, 303, 96 S.Ct. 2513, 49
L.Ed.2d 511 (1976).
{¶40} Because Mosley has failed in his burden to “negate every conceivable
basis that might support the legislation,” I disagree with the majority’s conclusion
that the legislation did not constitutionally apply to him at the time that the 2003
amendments to Megan’s Law went into effect.
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III. Conclusion
{¶41} The legislature properly classified Mosley as a child-victim offender in
2003. Because he is being prosecuted for violation of his duties as a child-victim
offender, he should not now be able to now challenge the constitutionality of his
previous classification as a sexually oriented offender. And even if he were able to
bring such a challenge, it rightfully should fail because a rational basis supports the
legislative enactment. The majority sees both points differently, so I respectfully
dissent.
Please note: The court has recorded its own entry this date.