State v. Tucker , 2013 Ohio 5102 ( 2013 )

[Cite as State v. Tucker, 2013-Ohio-5102.]
IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO
STATE OF OHIO, : APPEAL NO. C-130026
TRIAL NO. B-0406245
Plaintiff-Appellee, :
vs. : O P I N I O N.
WALTER TUCKER, :
Defendant-Appellant. :
Criminal Appeal From: Hamilton County Court of Common Pleas
Judgment Appealed From Is: Affirmed
Date of Judgment Entry on Appeal: November 20, 2013
Joseph T. Deters, Hamilton County Prosecuting Attorney, and Paula E. Adams,
Assistant Prosecuting Attorney, for Plaintiff-Appellee,
Myron Y. Davis, Jr., for Defendant-Appellant.
Please note: this case has been removed from the accelerated calendar.
OHIO FIRST DISTRICT COURT OF APPEALS
H ENDON , Presiding Judge.
{¶1} In 2004, defendant-appellant Walter Tucker pleaded guilty to two
counts of abduction, in violation of R.C. 2905.02(A)(2). He was sentenced to
concurrent three-year terms of incarceration. Tucker was released in 2007. At some
point, he was informed that he was required to register under former R.C. Chapter
2950 (“Megan’s Law”). See Am.Sub.H.B. No. 180, 146 Ohio Laws, Part II, 2560,
enacted in 1996, was amended in 2003 by Am.Sub.S.B. No. 5, 150 Ohio Laws, Part
IV, 6556. On November 2, 2012, Tucker filed a “Motion to Relieve Duty to Register
as Sex Offender.”
{¶2} At the hearing on his motion, Tucker argued that he should not be
required to register as a sex offender because his crimes had not been committed
with a sexual motivation. The prosecutor agreed that Tucker’s crimes had not been
committed with a sexual motivation and stated that Tucker was required to register
not as a sex offender, but as a child-victim oriented offender because Tucker’s
abduction victims had been a seven-year-old child and a one-year-old child. Tucker
did not dispute the ages of his victims, but continued to insist that his duty to register
should be relieved because the crimes were not sexually motivated. The trial court
overruled the motion. Tucker has appealed, raising a single assignment of error for
our review.
{¶3} Tucker’s sole assignment of error alleges that the trial court erred in
overruling his “Motion to Relieve Duty to Register as Sex Offender.” Tucker
essentially argues that in the absence of any sexual motivation for his crimes,
requiring him to register as a sex offender is unconstitutional because it is not
rationally related to any legitimate state interest. But Tucker is not required to
register because he is a sex offender. Tucker is required to register because he
committed child-victim oriented offenses.
2
OHIO FIRST DISTRICT COURT OF APPEALS
{¶4} Megan’s Law was amended in 2003 by Am.Sub.S.B. No. 5, 150 Ohio
Laws, Part IV, 6556. The amendments to former R.C. 2950.02 were designed to
advance the legislature’s “determinations and intent to provide information to
protect public safety.” The legislature stated in former R.C. 2950.02(A)(1) that “[i]f
the public is provided adequate notice * * * about offenders * * * who commit child-
victim oriented offenses, members of the public and their communities can develop
constructive plans to prepare themselves and their children for the offender’s release
* * *.” The legislature further stated that child-victim oriented offenders pose a risk
of reoffending; that protecting the public from “offenders who commit child-victim
oriented offenses is a paramount governmental interest”; that child-victim oriented
offenders pose “increased risks” to “public safety”; that child-victim oriented
offenders have a reduced privacy interest “because of the public’s interest in safety”;
and that releasing information about child-victim oriented offenders will “further the
governmental interests of public safety and public scrutiny of the criminal” system.
See former R.C. 2950.02 (A)(2), (4), (5) and (6). In providing for registration of
child-victim oriented offenders, the legislature intended to “protect the safety and
general welfare of the people” of Ohio and declared that the release of information
regarding child-victim oriented offenders to the general public is “a means of
assuring public protection.” See former R.C. 2950.02(B).
{¶5} Former R.C. 2950.041(A)(1)(a) provided that an offender who had
been sentenced to incarceration for a child-victim oriented offense and had been
released from incarceration for that offense on or after July 31, 2003, was subject to
Megan’s Law’s registration and reporting requirements. Former R.C.
2950.01(S)(1)(a)(i) defined abduction in violation of R.C. 2950.02(A)(2) as a child-
victim oriented offense when it was committed by a person 18 years of age or older
against a victim under 18 years of age and not a child of the offender. Tucker’s
3
OHIO FIRST DISTRICT COURT OF APPEALS
victims were seven years old and one year old. Therefore, he was convicted of child-
victim oriented offenses. He was released from incarceration for those offenses in
2007. As a result, he is required to register under Megan’s Law as a child-victim
oriented offender.
{¶6} The cases Tucker cites in his brief are inapposite because they neither
involve nor address the 2003 amendments to Megan’s Law. Before the enactment of
the 2003 amendments, the law did not provide for the category of child-victim
oriented offenses. Certain crimes such as the ones committed by Tucker against
minor victims were automatically labeled sexually-oriented offenses even if they had
not been committed with a sexual motivation. This court noted in State v. Golden,
1st Dist. Hamilton Nos. C-030460 and C-030461, 2004-Ohio-2276, ¶ 27, that prior
to the 2003 amendments to Megan’s Law some Ohio courts had held that the
requirement in former R.C. Chapter 2950 that a offender “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.”
{¶7} In one of the pre-2003-amendments cases cited by Tucker, State v.
Barksdale, 2d Dist. Montgomery No. C.A. Case No. 19294, 2003-Ohio-43, ¶ 21, the
court stated that it had “little doubt that the legislature could * * * provide for
regulation and reporting requirements for felons who have committed offenses
against children, upon the theory that children require additional measures to
protect them; but it would be unreasonable and arbitrary to denominate these felons
as ‘sexually oriented offenders’ when their offenses involve no sexual motivation or
purpose[.]” As the Tenth Appellate District pointed out in State v. Small, 162 Ohio
App.3d 375, 2005-Ohio-3813, 833 N.E.2d 774, ¶ 46 (10th Dist.), “Indeed, the
General Assembly in (2003) Am.Sub.S.B. No. 5 appeared to have recognized the
4
OHIO FIRST DISTRICT COURT OF APPEALS
inconsistency of denominating persons who kidnap child victims absent any
evidence of sexual motivation or purpose as ‘sexually oriented offenders’ by creating
a new category in R.C. 2950.01, ‘child-victim oriented offense * * *.’ ”
{¶8} Tucker was convicted of child-victim oriented offenses, and therefore,
he is subject to Megan’s Law’s registration and reporting requirements. The
assignment of error is overruled, and the judgment of the trial court denying
Tucker’s motion to relieve his duty to register is affirmed.
Judgment affirmed.
HILDEBRANDT and CUNNINGHAM, JJ., concur.
Please note:
The court has recorded its own entry this date.
5