State v. Moore , 2013 Ohio 5009 ( 2013 )

[Cite as State v. Moore, 2013-Ohio-5009.]
COURT OF APPEALS
RICHLAND COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO : JUDGES:
:
: Hon. W. Scott Gwin, P.J.
Plaintiff - Appellee : Hon. John W. Wise, J.
: Hon. Craig R. Baldwin, J.
:
-vs- :
:
BRIAN W. MOORE : Case No. 13CA10
:
:
Defendant - Appellant : OPINION
CHARACTER OF PROCEEDING: Appeal from the Richland County
Court of Common Pleas, Case No.
12-CR-795D
JUDGMENT: Affirmed
DATE OF JUDGMENT: November 7, 2013
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
JAMES J. MAYER, JR. RANDALL E. FRY
Prosecuting Attorney 10 West Newlon Place
Mansfield, OH 44902
By: JILL M. COCHRAN
Assistant Prosecuting Attorney
38 South Park Street
Mansfield, OH 44902
Richland County, Case No. 12CA10 2
Baldwin, J.
{¶1} Defendant-appellant Brian Moore appeals his conviction and sentence
from the Richland County Court of Common Pleas on one count of failure of a sexually
oriented offender to notify of change of address. Plaintiff-appellee is the State of Ohio.
STATEMENT OF THE FACTS AND CASE
{¶2} On November 13, 2012, the Richland County Grand Jury indicted
appellant on one count of failure of a sexually oriented offender to notify of change of
address in violation of R.C. 2950.05(E)(1), a felony of the third degree. At his
arraignment on November 20, 2012, appellant entered a plea of not guilty to the charge.
{¶3} A jury trial was held on January 10, 2013. The following testimony was
adduced at trial.
{¶4} Pursuant to a Judgment Entry filed on August 22, 2001 in Huron County,
appellant, who was found to be a habitual sex offender, was required to verify his
residence address in person at the County Sheriff’s Office once a year for twenty years.
He also was required to notify the Sheriff with whom he had most recently registered of
any change of address at least seven days prior to any change of address.
{¶5} Pursuant to a Sentencing Entry filed in Richland County Case No. 2008-
CR-0606D, appellant, who had been convicted of failure to provide change of address,
was ordered to advise his Probation Officer and the Sheriff of any address change.
Subsequently, appellant, in 2011, was convicted in Richland County Case No. 2011-
CR-73D of failure to notify of change of address after pleading guilty.
{¶6} Connie Walls, who is in charge of registering sex offenders for the
Richland County Sheriff’s Office, testified that appellant came into their office after
Richland County, Case No. 12CA10 3
moving into Richland County from Huron County where he was originally registered.
According to Walls, appellant came into her office on July 16, 2012 and registered his
expected address, which was at 34 West Main Street in Shiloh, Ohio. The form that
appellant signed listed his specific registration requirements.
{¶7} On August 14, 2012, appellant personally appeared in the Richland
County Sheriff’s Office to notify that he had left his prior address and was homeless.
The form appellant signed on such date indicated that he expected to be homeless in
Shiloh, Ohio. The form stated that appellant was required to register in person no later
than November 15, 2012 with the Richland County Sheriff’s Office. The form also
contained a handwritten note from Walls informing appellant that he was to report to the
Sheriff’s Office by August 22, 2012 or sooner if a residence was established. Appellant’s
initials are by the notation. Wall testified that she informed appellant that he was
required to be present at the Sheriff’s Office in person and that appellant did not give
her any reason why he would be unable to comply.
{¶8} Wall testified that on August 22, 2012, appellant did not appear. She
stated that on such date, she had received a message from appellant stating that he
was going to be having surgery and could not come in. Appellant left a second message
for Walls on August 24, 2012 stating that he was going to be moving to 3 DeWeese
Place, Apartment A in Mansfield, Ohio. According to Walls, appellant never appeared in
person from August 22, 2012 through October 2, 2012, never left her any other
messages and did not contact her by phone again. He also never registered an address
on 705 Xenia Avenue in Dayton, Ohio and never registered a 1995 black Chevy Lumina
with the Richland County Sheriff’s Office.
Richland County, Case No. 12CA10 4
{¶9} At the trial, Walls testified that she received a telephone call from Bill
Spognardi who was renting or going to rent an apartment at 3 DeWeese Place to
appellant. Spognardi was concerned about whether or not appellant had been
complying with his registration requirements. Walls testified that Sporgnardi left a
message for her on September 11, 2012 indicating that he was probably going to be
evicting appellant because he saw officers checking appellant’s whereabouts and was
concerned that appellant was not in compliance with his reporting requirements.
Spognardi told Walls that he had discussed the matter with appellant.
{¶10} At trial, Jennifer Godsey, a police officer with the City of Dayton, testified
that, on October 2, 2012, she was patrolling in uniform in a marked cruiser when she
came into contact with a 1995 black Chevy Lumina. The vehicle had been listed as
stolen. Officer Godsey testified that appellant was the driver of the vehicle and that
there were two passengers, one a woman and one a man. She testified that she was
able to ascertain where the vehicle had come from after locating the vehicle in an alley.
Officer Godsey testified that she learned that appellant had been selling scrap metal
with a female companion in Dayton, Ohio and that a video of the sale showed that
appellant did not have any difficulty lifting scrap or bending over.
{¶11} Officer Harry Dilley of the Dayton Police Department testified that on
October 2, 2012, he was checking nuisance abated properties on Xenia Avenue in
Dayton with his partner. He went into 705 Xenia and heard a noise upstairs. When
Officer Dilley and his partner went upstairs to check, he found one room with a mattress
covered by a sheet in the middle of the floor. After opening the closet door in the room,
the Officer found appellant and a woman inside crouching inside the back of the closet.
Richland County, Case No. 12CA10 5
Upon searching appellant, the Officer located the key to the Lumina. When asked, he
did not know how long appellant had been at the 705 Xenia address.
{¶12} The next witness to testify was Deputy Rich Eichinger of the Richland
County Sheriff’s Office who testified that he was familiar with appellant. Deputy
Eichinger testified that on September 5, 2012, at the request of Connie Walls, he drove
by the DeWeese Place address with U.S. Federal Marshall Ross Wilbur. He testified
that upon arriving, he observed appellant walking southbound down DeWeese and then
walk into 3 DeWeese. Appellant did not appear to have any difficulty walking. U.S.
Marshall Wilbur testified that he had been shown a photograph of appellant and that he
observed a man who he believed was appellant walk up the street and enter a
residence at 3 DeWeese.
{¶13} Appellant’s Parole Officer, Brian Houseworth, testified that he last saw
appellant on August 14, 2012 and last spoke with him on August 23, 2012. He testified
that appellant indicated that he was going to be having hernia surgery.
{¶14} At the conclusion of the evidence and the end of deliberations, the jury, on
January 10, 2012, found appellant guilty of failure to give notice of a change of his
residence address. As memorialized in a Sentencing Entry filed on January 11, 2013,
appellant was sentenced to three (3) years in prison.
{¶15} Appellant now raises the following assignment of error on appeal:
{¶16} THE VERDICT OF GUILTY AGAINST THE DEFENDANT-APPELLANT
FOR COMMITTING THE CRIME OF FAILURE OF A SEXUALLY ORIENTED
OFFENDER TO NOTIFY OF CHANGE OF ADDRESS WAS AGAINST THE MANIFEST
WEIGHT OF THE EVIDENCE.
Richland County, Case No. 12CA10 6
I
{¶17} Appellant, in his sole assignment of error, argues that his conviction for
failing to notify of change of address is against the manifest weight of the evidence. We
disagree.
{¶18} Manifest weight of the evidence claims concern the amount of evidence
offered in support of one side of the case, and is a jury question. We must determine
whether the jury, in interpreting the facts, so lost its way that its verdict results in a
manifest miscarriage of justice, State v. Thompkins , 78 Ohio St. 3d 387, 678 N.E.2d
541, 1997–Ohio–52. On review for manifest weight, a reviewing court is “to examine the
entire record, weigh the evidence and all reasonable inferences, consider the credibility
of the witnesses and determine whether in resolving conflicts in the evidence, the trier of
fact clearly lost its way and created such a manifest miscarriage of justice that the
judgment must be reversed. The discretionary power to grant a new hearing should be
exercised only in the exceptional case in which the evidence weighs heavily against the
judgment.” State v. Thompkins, supra, 78 Ohio St.3d at 387, citing State v. Martin
(1983), 20 Ohio App. 3d 172, 175, 485 N.E.2d 717 (1st Dist 1983). Because the trier of
fact is in a better position to observe the witnesses' demeanor and weigh their
credibility, the weight of the evidence and the credibility of the witnesses are primarily
for the trier of fact. State v. DeHass, 10 Ohio St. 2d 230, 227 N.E.2d 212 (1967),
syllabus 1.
{¶19} Appellant, in the case sub judice, was convicted of failure of a sexually
oriented sex offender to notify of change of address in violation of R.C. 2950.05(E)(1).
Richland County, Case No. 12CA10 7
Appellant now maintains that his conviction is against the manifest weight of the
evidence because appellee failed to prove that he was not still “homeless’ during the
period between August 22, 2012 and October 2, 2012 as set forth in the indictment.
{¶20} As is stated above, appellant, on August 14, 2012, went to the Richland
County Sheriff’s Office and listed his address as “homeless”. The form signed by
appellant stated that “[s]ince your expected residence address as stated above is
located in Richland County, you shall register in person no later than 11/15/2012” with
the Richland County Sheriff’s Office. The form also contains a handwritten notation
initialed by appellant that directs appellant to “[b]e here by 8-22-12 or sooner if
residence is established.” Appellant never appeared in person on or after such date
even though he was advised by Walls that he needed to do so.
{¶21} Rather, on August 24, 2012, appellant left a message for Walls indicating
that he would be moving to 3 DeWeese Place, Apartment A in Mansfield. Appellant
never appeared in person to register such address.
{¶22} Testimony was adduced that when Deputy Eichinger and U.S. Marshall
Wilbur went to the 3 DeWeese address at the request of Connie Walls, they observed
appellant go into 3 DeWeese. In addition, Connie Walls testified that she received a
telephone call from Bill Spognardi, who had seen the above officers at the 3 DeWeese
address and was concerned that appellant was not in compliance with his registration
requirements. Spognardi told Walls that he probably was going to be evicting appellant.
Based on the foregoing, we find that the jury did not lose its way in finding that appellant
was living at the DeWeese address and that he never registered the address in person.
While appellant alleges that he did not appear in person on August 22, 2012 because
Richland County, Case No. 12CA10 8
he had surgery on such date, there is no evidence that appellant had surgery or that his
surgery prevented him from registering in person.
{¶23} Appellant’s sole assignment of error is, therefore, overruled.
{¶24} Accordingly, the judgment of the Richland County Court of Common Pleas
is affirmed.
By: Baldwin, J.
Gwin, P.J. and
Wise, J. concur.
HON. CRAIG R. BALDWIN
HON. W. SCOTT GWIN
HON. JOHN W. WISE
CRB/dr
[Cite as State v. Moore, 2013-Ohio-5009.]
IN THE COURT OF APPEALS FOR RICHLAND COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO :
:
Plaintiff - Appellee :
:
-vs- : JUDGMENT ENTRY
:
BRIAN W. MOORE :
:
Defendant - Appellant : CASE NO. 13CA10
For the reasons stated in our accompanying Memorandum-Opinion, the
judgment of the Court of Common Pleas of Richland County, Ohio is affirmed. Costs
assessed to appellant.
HON. CRAIG R. BALDWIN
HON. W. SCOTT GWIN
HON. JOHN W. WISE