Out-of-state sex offender's failure to register based on "substantially equivalent" Ohio offense

The Ohio Supreme Court further clarified aspects of state sex offender registry provisions last Tuesday in explaining its analysis that a court must undertake in determining (1) whether an out-of-state conviction is a sexually oriented offense that triggers a duty to register in Ohio and (2) the sanction for failure to register as a sex offender in Ohio based on a duty that arises from an out-of-state conviction. [ See State v. Lloyd, Slip Opinion 2012-Ohio-2015 ]

In considering the issue brought by Wesley Lloyd – involving charges filed for failure to report a change of address to the respective county sheriffs when he moved from Auglaize County, Ohio to Holmes County, Ohio in June 2008 – the Court's summary noted the "6-1 decision, authored by Chief Justice Maureen O’Connor, explained that the legislature established that an out-of-state conviction is a sexually oriented offense under Ohio law if it is or was 'substantially equivalent' to any of the Ohio offenses listed in R.C. 2950.01(A)(1) through (10). But the legislature did not explain the analysis that courts must undertake in making the substantial-equivalence determination.

"'In order to determine whether an out-of-state conviction is a sexually oriented offense in Ohio,'" the Chief Justice wrote, "'a court must initially 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. If the out-of-state statute defines the offense in such a way that the court cannot discern from a comparison of the statutes whether the offenses are substantially equivalent, a court may go beyond the statutes and rely on a limited portion of the record in a narrow class of cases where the fact-finder was required to find all the elements essential to a conviction under the listed Ohio statute. To do so, courts are permitted to consult a limited range of material contained in the record, including charging documents, plea agreements, transcripts of plea colloquies, presentence reports, findings of fact and conclusions of law from a bench trial, jury instructions and verdict forms, or some comparable part of the record."

The court held further that when a person who was convicted of a sexually oriented offense in another state and was required to register with police in that state moves to Ohio, that person is subject to the sex-offender registration requirements applicable to an Ohio offender convicted of the "substantially equivalent" Ohio offense, and is subject to the same penalties for failure to register in Ohio as an Ohio offender who committed the equivalent Ohio offense.

Wesley Lloyd had been convicted of aggravated sexual assault in Texas in 1995, and served a seven-year prison sentence there, the Court summary's background said. In the fall of 2005 he moved to Auglaize County, Ohio, and was told by the Auglaize County sheriff that he was required to register in Ohio as a sexually oriented offender. Lloyd registered with the Auglaize County sheriff as instructed in compliance with Ohio's pre-2008 (Megan's Law) sex-offender registration statute. In 2008, he received notice that he had been reclassified by the Ohio attorney general as a Tier III sex offender under the newly enacted Ohio Adam Walsh Act, and would thereafter be subject to more stringent registration requirements. Lloyd continued to register as instructed, last registering with the Auglaize County sheriff in May 2008.

Then on June 2, 2008, he moved to Holmes County, Ohio, and although he telephoned the Auglaize County sheriff's office to inform it of his move, he did not give the Auglaize County sheriff advance notice of his move and did not appear in person at the Holmes County sheriff’s office, as required. On June 12, 2008, he was arrested by Holmes County authorities and subsequently charged with three separate violations of Ohio’s sex offender registration statute: (1) failure to register with the Holmes County Sheriff within three days of moving to Holmes County, (2) failure to provide written notice to the Holmes County Sheriff of intent to reside in Holmes County at least 20 days before moving there, and (3) failure to provide written notice to the Auglaize County Sheriff of intent to move to Holmes County at least 20 days before moving. He was convicted on all counts and sentenced to three years’ imprisonment on each count, to be served concurrently.

On appeal, the Fifth District Court of Appeals vacated Lloyd's conviction on the charge of failure to provide 20 days' advance notice to the Holmes County sheriff., reasoning that pursuant to the Supreme Court of Ohio's June 2010 decision in State v. Bodyke, Lloyd was required to register in accordance with Megan's Law, not the Adam Walsh Act, and the duty to give advance notice to the sheriff in the county to which one moves arises only under the Adam Walsh Act. The appeals court, however, affirmed the remaining two convictions. [ Fifth District's decision ]