Hall v. State , 2021 Ohio 3363 ( 2021 )

[Cite as Hall v. State, 2021-Ohio-3363.]
IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO
SAMANTHA HALL, : APPEAL NO. C-200308
TRIAL NO. SP-1400012
Petitioner-Appellant, :
vs. : O P I N I O N.
STATE OF OHIO, :
Respondent-Appellee. :
Criminal Appeal From: Hamilton County Court of Common Pleas
Judgments Appealed From Are: Affirmed
Date of Judgment Entry on Appeal: September 24, 2021
Law Office of Angela Glaser and Angela Glaser, for Petitioner-Appellant,
Joseph T. Deters, Hamilton County Prosecuting Attorney, and Paula E. Adams,
Assistant Prosecuting Attorney, for Respondent-Appellee.
OHIO FIRST DISTRICT COURT OF APPEALS
BERGERON, Presiding Judge.
{¶1} Samantha Hall is a sexual-offender registrant from the state of
Kentucky, who settled in Ohio in 2012 following her release from prison. After
receiving an automatic classification as a sexual predator in Ohio, she petitioned for
reclassification under former R.C. 2950.09(F) and removal of her sexual-offender
classification imposed by the Hamilton County sheriff. The trial court denied her
petitions, prompting this appeal. In light of the record at hand, we hold that the
Kentucky offense of sodomy in the second degree is substantially similar to the Ohio
offense of gross sexual imposition under R.C. 2907.05(A)(4), and thus we affirm the
judgments of the trial court.
I.
{¶2} In 1992, a Kentucky court convicted Ms. Hall of three counts of
sodomy in the second degree. The record established that Ms. Hall forcibly
committed sexual acts on her 11-year-old niece and her own infant children. As a
result of her convictions, Ms. Hall was required to register every 90 days for life on
the Kentucky Criminal Offender Registry.
{¶3} After Ms. Hall’s release from prison in 2012, she moved to Ohio and
was automatically classified as a sexual predator under former R.C. Chapter 2950,
Megan’s Law, by virtue of her lifetime reporting requirement in Kentucky. After
several years in Ohio, Ms. Hall petitioned for reclassification under former R.C.
2950.09(F) and credit for previous registration under former R.C. 2950.07(E). She
also requested vacatur of the classification imposed by the Hamilton County sheriff.
Ms. Hall argued, among other things, that her Kentucky convictions for sodomy were
not substantially equivalent to any Ohio offense. The state objected, emphasizing
similarities with the Ohio offenses of sexual battery under R.C. 2907.02 and gross
sexual imposition under R.C. 2907.05.
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OHIO FIRST DISTRICT COURT OF APPEALS
{¶4} Following a hearing, the trial court determined that the statute that
Ms. Hall was convicted under (i.e., KRS 510.080) is substantially equivalent to gross
sexual imposition under R.C. 2907.05(A)(4). The court accordingly denied Ms.
Hall’s petition for reclassification and motion for vacatur of her sexual-predator
classification. Ms. Hall now appeals from that judgment.
II.
{¶5} In Ms. Hall’s sole assignment of error, she contends that the trial court
erred in determining that the Kentucky offense of sodomy in the second degree is
substantially equivalent to the Ohio offense of gross sexual imposition under R.C.
2907.05(A)(4).
{¶6} We apply a two-step analysis to determine if an out-of-state offense is
substantially equivalent to an Ohio offense set forth in State v. Lloyd, 132 Ohio St.3d
135, 2012-Ohio-2015, 970 N.E.2d 870, ¶ 31. First, we “must * * * look only to the fact
of conviction and the elements of the relevant criminal statutes, without considering
the particular facts disclosed by the record of conviction.” Id. We need not find that
the statutes are identical, however, because “the Ohio statutory phrase ‘substantially
equivalent’ expressly leaves room for potential distinctions between the out-of-state
statute and the relevant Ohio statute.” Id. at ¶ 28.
{¶7} If we “cannot discern from a comparison of the statutes whether the
offenses are substantially equivalent,” then we move to the second step. Id. at ¶ 31.
During the second-step, we “may go beyond the statutes and rely on a limited portion
of the record” for cases where the “factfinder was required to find all the elements
essential to a conviction under the listed Ohio statute.” Id. At this step, we may
consider the indictment, plea agreements, transcripts, presentence reports, factual
findings, legal conclusions from a bench trial, and similar portions of the record. See
id.
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OHIO FIRST DISTRICT COURT OF APPEALS
{¶8} We review the trial court’s finding of substantial equivalence de novo
because it fundamentally poses a question of statutory interpretation. See id. at ¶ 29-
31; State v. Thomas, 2016-Ohio-501, 56 N.E.3d 432, ¶ 5 (1st Dist.) (“Questions of
statutory interpretation are reviewed de novo.”).
A.
{¶9} In the present case, Ms. Hall was convicted of sodomy in the second
degree under KRS 510.080, which provides “(1) [a] person is guilty of sodomy in the
second degree when: (a) being eighteen (18) years old or more, he or she engages in
deviate sexual intercourse with another person less than fourteen (14) years old.”
Under KRS 510.010(1), “ ‘[d]eviate sexual intercourse’ means any act of sexual
gratification involving the sex organs of one person and the mouth or anus of
another; or penetration of the anus of one person by any body part or a foreign object
manipulated by another person.”
{¶10} We must decide whether KRS 510.080 is substantially equivalent to
Ohio’s crime of gross sexual imposition, R.C. 2907.05(A)(4), which provides “(A)
[n]o person shall have sexual contact with another, not the spouse of the offender;
cause another, not the spouse of the offender, to have sexual contact with the
offender; or cause two or more persons to have sexual contact when any of the
following applies: * * * [t]he other person, or one of the other persons, is less than
thirteen years of age, whether or not the offender knows the age of that person[.]”
“ ‘Sexual contact’ means any touching of an erogenous zone of another, including
without limitation the thigh, genitals, buttock, pubic region, or, if the person is a
female, a breast, for the purpose of sexually arousing or gratifying either person.”
R.C. 2907.01(B).
{¶11} Ohio courts consider the mental state required to commit each offense
when assessing the substantial equivalence of the pertinent statutes. See, e.g., Lloyd,
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OHIO FIRST DISTRICT COURT OF APPEALS
132 Ohio St.3d 135, 2012-Ohio-2015, 970 N.E.2d 870, at ¶ 38 (Ohio statute including
a purposeful mental state was substantially equivalent to a Texas statute including an
intentional mental state); Hollis v. State, 2020-Ohio-2924, 154 N.E.3d 572, ¶ 11-12
(1st Dist.) (emphasizing distinction between Florida offense imposing strict liability
and Ohio offense requiring the defendant to know the victim was between 13 and 16
years old, or act recklessly with regard to the victim’s age); Phipps v. Ohio, 2018-
Ohio-720, 107 N.E.3d 754, ¶ 13 (1st Dist.) (emphasizing distinction between New
York strict-liability offense and an Ohio statute that required a knowing or reckless
mental state with respect to age); State v. Collier, 8th Dist. Cuyahoga Nos. 100906,
101235 and 101272, 2014-Ohio-5683, ¶ 22, appeals not accepted, 143 Ohio St.3d
1405, 2015-Ohio-2747, 34 N.E.3d 133 (Ohio statute with knowing or reckless mental
state contrasted with Illinois strict-liability statute).
{¶12} Ohio courts may also consider the age range of the victims and
perpetrators under each statute during this analysis. See, e.g., Hollis at ¶ 11-12
(pointing out distinction between Ohio statute requiring victims to be between 13
and 15 and perpetrator to be over 18, whereas Florida statute protected victims
between 12 and 16 and did not have an age limit for the perpetrator); Phipps at ¶ 13-
14 (statutes differed when Ohio statute required victims to be between 13 and 15,
while New York statute protected victims under 17); Collier at ¶ 16-19 (contrasting
Ohio statute requiring victims be between 13 and 15 with Illinois statute requiring
victim be between 13 and 17 and the accused be at least five years older than the
victim).
{¶13} In this case, like Hollis, Phipps and Collier, the ages of the victims and
the perpetrators in the out-of-state statutes differ from the ages of the victims and
the perpetrators under the Ohio statute. But unlike in Hollis, Phipps and Collier, the
mental state required for a violation of the Kentucky statute is the same as that
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OHIO FIRST DISTRICT COURT OF APPEALS
required for a violation of the Ohio statute—both are strict-liability statutes. We also
note that the Kentucky statute bars deviate sexual intercourse, which involves the
mouth or anus, whereas the Ohio statute more broadly bars sexual contact with
persons in the protected age range. In light of various differences between each of
these statutes, we cannot determine whether the offenses are substantially equivalent
from a simple comparison of the statutes. See State v. Reynolds, 1st Dist. Hamilton
No. C-140096, 2014-Ohio-5159 (where the out-of-state statute required proof of both
intent and recklessness and the Ohio statute required a mens rea of knowingly, the
case presented one of those instances where the court could not tell from a
comparison of the statutes whether the offenses were substantially equivalent).
B.
{¶14} As a result, we turn now to the second step in the analysis. Here, we
may consider a limited portion of the record to determine if the Kentucky court that
convicted Ms. Hall was required to find all the elements essential to a conviction
under the relevant Ohio statute. Lloyd, 132 Ohio St.3d 135, 2012-Ohio-2015, 970
N.E.2d 870, at ¶ 31.
{¶15} The record reveals that Ms. Hall forcibly committed sex acts with her
11-year-old niece and infant children (five months old and a year and a half old at the
time). Although the statutes have different age requirements for victims and
perpetrators, those age ranges make no difference here because these victims and the
perpetrator meet the age requirements of both statutes. Moreover, while the
Kentucky statute required the trial court to find that Ms. Hall committed an act that
involved the sex organs of one person and the mouth or anus of another, including
penetration of the anus by body part or foreign object, the Ohio statute more broadly
prohibits any sexual contact with an erogenous zone of another including the thigh,
genitals, buttock, pubic region or breast. The Ohio statute would encompass the
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OHIO FIRST DISTRICT COURT OF APPEALS
sexual contact prohibited by the Kentucky statute, including that perpetrated by Ms.
Hall in the case at hand. And since each statute includes the same mental state, the
Kentucky court was required to find all the elements necessary to establish a
conviction under Ohio’s gross-sexual-imposition statute. In light of the record, there
is no serious question that Ms. Hall’s conduct would constitute gross sexual
imposition under the Ohio statute.
{¶16} We hold that the trial court did not err in finding that the Kentucky
offense of sodomy in the second degree is substantially equivalent to the Ohio
offense of gross sexual imposition under R.C. 2907.05(A)(4) on this record. Ms.
Hall’s assignment of error is overruled and the judgments of the trial court are
affirmed.
Judgments affirmed.
CROUSE and BOCK, JJ., concur.
Please note:
The court has recorded its own entry this date.
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