State v. Savors

[Cite as State v. Savors, 2010-Ohio-6084.]

STATE OF OHIO, COLUMBIANA COUNTY

IN THE COURT OF APPEALS

SEVENTH DISTRICT

STATE OF OHIO, )

)

PLAINTIFF-APPELLEE, )

)

VS. ) CASE NO. 09-CO-32

)

RANDY A. SAVORS, ) OPINION

)

DEFENDANT-APPELLANT. )

CHARACTER OF PROCEEDINGS: Criminal Appeal from Court of Common

Pleas of Columbiana County, Ohio

Case No. 08CR210

JUDGMENT: Affirmed

APPEARANCES:

For Plaintiff-Appellee Robert Herron

Prosecuting Attorney

Timothy J. McNicol

Assistant Prosecuting Attorney

105 S. Market Street

Lisbon, Ohio 44432

For Defendant-Appellant Attorney Douglas A. King

Hartford, Dickey & King Co., LPA

91 West Taggart Street, P.O. Box 85

East Palestine, Ohio 44413

JUDGES:

Hon. Gene Donofrio

Hon. Cheryl L. Waite

Hon. Mary DeGenaro

Dated: December 13, 2010

[Cite as State v. Savors, 2010-Ohio-6084.]

DONOFRIO, J.

{¶1} Defendant-appellant, Randy A. Savors, appeals from a Columbiana

County Common Pleas Court judgment convicting him of failure to notify the sheriff of

a change of address, following a jury trial.

{¶2} In 1997, appellant pleaded guilty to a first-degree felony rape charge,

and the trial court sentenced him to ten years in prison. Appellant was released on

parole on March 3, 2007, and came under the supervision of Parole Officer John

Granger. In addition to being on parole, as a Tier III offender, appellant was required

to report in person to Sergeant Dan Bradley of the Columbiana County Sheriff's

Department every 90 days to sign a “Notice of Registration Duties” form and to verify,

among other things, his current address. Moreover, as a Tier III offender, whenever

appellant plans to move, he is required to notify the Sheriff's Office at least 20 days in

advance of changing his address. Offenders are required to report in person before

they physically move, otherwise a warrant will be issued for their arrest.

{¶3} After his release from prison, appellant briefly lived with his father on

Dyke Road. Then he moved to his grandmother's house at 49173 South

Meadowbrook Circle. After that, appellant gained employment and moved into a

residence at 7383 Depot Street. Up to this point, appellant had followed the moving

procedure “perfectly,” according to his parole officer.

{¶4} On May 22, 2008, during his 90-day registration meeting with Sgt.

Bradley, appellant listed his address as 7383 Depot Street. Appellant also gave that

same Depot Street address to Granger during their meeting on June 10, 2008.

{¶5} Appellant moved from the Depot Street property on June 22, 2008.

From there, he moved back to his grandmother's house. Appellant failed to advise

Granger or Sgt. Bradley that he intended to move.

{¶6} Meanwhile, on June 30, after appellant had already moved in with his

grandmother on Meadowbrook Circle, Granger made an unannounced visit to

appellant's registered Depot Street address. Granger noticed the outside of the

house looked dramatically different. Finding no one home, Granger left his card with

a note directing appellant to call him as soon as possible.

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{¶7} Granger subsequently generated a whereabouts unknown report. Sgt.

Bradley was also informed. On July 3, Sgt. Bradley signed a criminal complaint

against appellant alleging that he had changed his address without notifying the

Sheriff's Office. Sgt. Bradley's charge was file-stamped on July 8, 2008.

{¶8} On July 7, Granger arrested appellant at his grandmother's house and

transported him to jail. The arrest was for an alleged parole violation stemming from

appellant’s failure to notify and not for the charge brought by Sgt. Bradley.

{¶9} Later on July 7, while appellant was at the Columbiana County Jail and

before he was booked, Sgt. Bradley brought appellant to his office in order to update

appellant's Tier III registration by getting the correct address. During that

conversation, appellant informed Sgt. Bradley that he had moved, and he gave the

new address of 49173 Meadowbrook Circle. Sgt. Bradley testified that appellant said

he knew that he should have contacted the Sheriff's Office, but he just did not do it.

Sgt. Bradley did not advise appellant of his Miranda rights prior to this conversation.

{¶10} A Columbiana County grand jury subsequently indicted appellant on

one count of failure to notify, a first-degree felony in violation of R.C. 2950.05(A).

{¶11} Appellant filed a motion to suppress the statements he made to Sgt.

Bradley prior to his arrest asserting they were inadmissible because Sgt. Bradley did

not read him his Miranda rights. The court held a hearing on the motion and

ultimately determined that appellant's constitutional rights were not violated and his

statements were admissible.

{¶12} On September 29, 2009, the case proceeded to a jury trial. The jury

found appellant guilty as charged. The trial court then sentenced appellant to seven

years in prison, to be followed by five years of parole.

{¶13} Appellant filed a timely notice of appeal on October 5, 2009. He now

raises three assignments of error, the first of which states:

{¶14} “THE TRIAL COURT ERRED IN DENYING DEFENDANT/APPELLANT

HIS CONSTITUTIONAL RIGHT TO ANSWER ONLY TO AN INDICTMENT FOR A

CRIME BY A DULY CONSTITUTED GRAND JURY WHEN IT ALLOWED THE

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STATE TO AMEND THE FATALLY DEFECTIVE INDICTMENT THE DAY OF THE

TRIAL.”

{¶15} The original indictment in this case charged appellant with a violation of

R.C.2950.05(A), failure to notify the sheriff of a change of address. The indictment

contained no mens rea element. On the day of trial, over appellant’s objection, the

trial court allowed the State to amend the indictment to add the mens rea of

“recklessly.”

{¶16} Appellant argues the trial court violated his rights under the Ohio

Constitution when it allowed the State to amend his indictment on the day of the trial.

Appellant emphasizes that an indictment must contain the elements of the offense

charged and fairly inform the defendant of the charge against which he must defend.

{¶17} This matter was recently addressed in State v. Horner, 126 Ohio St.3d

466, 2010-Ohio-3830. The Ohio Supreme Court held:

{¶18} “An indictment that charges an offense by tracking the language of the

criminal statute is not defective for failure to identify a culpable mental state when the

statute itself fails to specify a mental state. ( State v. Buehner, 110 Ohio St.3d 403,

2006-Ohio-4707, 853 N.E.2d 1162, reaffirmed; State v. Colon, 118 Ohio St.3d 26,

2008-Ohio-1624, 885 N.E.2d 917, overruled; State v. Colon, 119 Ohio St.3d 204,

2008-Ohio-3749, 893 N.E.2d 169, overruled in part.) Id. at paragraph one of the

syllabus.

{¶19} The statute at issue, R.C. 2950.05(A), does not contain a culpable

mental state: “If an offender *** is required to register pursuant to [statute] *** the

offender *** shall provide notice of any change of residence *** to the sheriff with

whom the offender *** most recently registered the address ***. [T}he offender ***

shall provide the written notice at least twenty days prior to changing the address of

the residence ***.” Therefore, pursuant to Horner, the indictment was not defective for

failing to include a mens rea element. As such, even if the court had not allowed the

state to amend the indictment, the indictment would not have been defective.

Furthermore, failure to register is a strict liability offense. See State v. Blanton, 184

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Ohio App.3d 611, 2009-Ohio-5334, at ¶26; State v. Robinson, 6th Dist. No. E-07-020,

2009-Ohio-2921, at ¶17; State v. Beasley (Sept. 27, 2001), 8th Dist No. 77761.

Therefore, by amending the indictment to include the “recklessly” mens rea, the

state’s burden of proof was actually raised. Thus, any error would have been to

appellant’s benefit.

{¶20} Accordingly, appellant's first assignment of is without merit.

{¶21} Appellant's second assignment of error states:

{¶22} “THE TRIAL COURT ERRED IN DENYING THE

DEFENDANT/APPELLANT'S MOTION TO SUPPRESS.”

{¶23} Appellant argues that Sgt. Bradley subjected him to a custodial

interrogation in violation of his due process rights because he did not receive Miranda

warnings prior to being asked for his registration information. Considering appellant

was in custody at the time and considering Sgt. Bradley had already signed a

criminal complaint against appellant for failing to update his address, appellant

characterizes Sgt. Bradley's attempt to update appellant's registered address as a

custodial interrogation. According to appellant, Sgt. Bradley's testimony about

appellant's statement was the crux of the state's evidence. Furthermore, appellant

argues that seeking to update the registered address of a sex offender who has been

arrested and against whom the charge of failure to notify the sheriff of a change of

address has already been signed is not the same as a booking officer asking a

criminal defendant for an address. Appellant argues that the address is the crime.

{¶24} Our standard of review with respect to a motion to suppress is first

limited to determining whether the trial court's findings are supported by competent,

credible evidence. State v. Winand (1996), 116 Ohio App.3d 286, 288, citing

Tallmadge v. McCoy (1994), 96 Ohio App.3d 604, 608. Such a standard of review is

appropriate as, “[i]n a hearing on a motion to suppress evidence, the trial court

assumes the role of trier of fact and is in the best position to resolve questions of fact

and evaluate the credibility of witnesses.” State v. Venham (1994), 96 Ohio App.3d

649, 653. An appellate court accepts the trial court's factual findings and relies upon

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the trial court's ability to assess the witness's credibility, but independently

determines, without deference to the trial court, whether the trial court applied the

appropriate legal standard. State v. Rice (1998), 129 Ohio App.3d 91, 94. A trial

court's decision on a motion to suppress will not be disturbed when it is supported by

substantial credible evidence. Id.

{¶25} The trial court made the following findings of fact. Appellant is a Tier III

sex offender who is required to register with the sheriff every 90 days. At the

Columbiana County Sheriff’s Office, where appellant is registered, Sgt. Bradley is in

charge of registrations. In June 2008, Sgt. Bradley learned from appellant’s parole

officer that appellant was no longer at his registered address. Sgt. Bradley then

initiated felony charges against appellant. On July 7, 2008, appellant was arrested

and brought to the county jail. Either on the day of his arrest or the day after, Sgt.

Bradley brought appellant to his office so that appellant could register his new

address. Sgt. Bradley then went through his standard registration procedure by

giving appellant a form to fill out and asking appellant his new address. Appellant

gave Sgt. Bradley his new address. Appellant then told Sgt. Bradley that he knew

he should have told him before that he was moving and that he knew he broke the

law.

{¶26} The evidence supports the court’s factual findings. Sgt. Bradley was

the only witness to testify and his testimony mirrors the court’s findings. In fact,

appellant does not take issue with the court’s factual findings on appeal. He only

takes issue with the legal conclusions.

{¶27} The trial court found that although appellant was in custody at the time,

this was not a custodial interrogation because there was no interrogation. It

determined that Sgt. Bradley was not trying to elicit information from appellant

concerning his involvement in a crime. Instead, Sgt. Bradley was performing the

ministerial duty of registering appellant. The court further found that appellant’s

statements were voluntary and that there was no questioning by Sgt. Bradley seeking

information about whether appellant had moved before he was supposed to or

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without registering or whether he knew he had violated the law. Consequently, the

court found appellant’s statement was admissible.

{¶28} This court must consider whether the appropriate legal standard was

applied to the suppression issue. All defendants are entitled to be notified of certain

rights prior to a custodial interrogation, and without those warnings, statements made

in a custodial interrogation are inadmissible. Miranda v. Arizona (1966), 384 U.S.

436. Accordingly, if appellant was subjected to a custodial interrogation without

being given his Miranda warnings, his statements were inadmissible.

{¶29} Having been arrested on a parole violation and transported to the jail,

appellant was clearly in custody. The issue then becomes whether Sgt. Bradley's act

of updating appellant's Tier III registration qualifies as an interrogation under

Miranda.

{¶30} The Supreme Court has ruled that an interrogation involves “words or

actions on the part of police officers that they should have known were reasonably

likely to elicit an incriminating response.” (Emphasis sic.) Rhode Island v. Innis

(1980), 446 U.S. 291, 302. “Incriminating” refers to any response, whether

inculpatory or exculpatory, that the prosecution may seek to introduce at trial. Id. at

301, fn. 5.

{¶31} On review, Sgt. Bradley had previously filed the “failure to notify” charge

against appellant. (Supp. Tr. 7). Therefore, he had reason to know that the

registration questions were reasonably likely to elicit an incriminating response from

appellant. That appellant's response was incriminating is later confirmed by the fact

that the prosecutor used that testimony at trial. (Trial Tr. 158). Registering a new

address was tantamount to appellant admitting that he had moved without notifying

the sheriff. As appellant asserts, his address was the crime.

{¶32} Moreover, appellant's statement that he knew he should have notified

the sheriff but did not, although found by the trial court to be voluntarily given, was

elicited by the registration process. But for the registration process, appellant would

not have made that statement.

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{¶33} The trial court determined that appellant's registration fell within the

“booking exception” because Sgt. Bradley had the administrative duty to register

appellant's address. The Supreme Court has recognized a “booking exception” for

questions designed to secure biographical information necessary to complete

booking or pretrial procedures. Pennsylvania v. Muniz (1990), 496 U.S. 582, 601.

Nevertheless, the booking exception is a narrow one. The Supreme Court noted that

the booking exception does not mean police may ask questions that are designed to

elicit incriminatory admissions. Id. at 602, fn. 14. Despite the fact that Sgt. Bradley

may not have been trying to obtain information from appellant concerning his

involvement in the failure to notify crime, Sgt. Bradley still had reason to know that

the process of registering appellant would elicit an incriminatory admission.

Therefore, under these facts, the questions as to appellant’s address do qualify as an

interrogation under Miranda. Consequently, the trial court should have suppressed

appellant’s statements to Sgt. Bradley.

{¶34} But this error was harmless. For a constitutional error to be held

harmless, the court must find that it was harmless beyond a reasonable doubt. State

v. Williams (1980), 6 Ohio St.2d 281, at paragraph three of the syllabus; Chapman v.

California (1967), 386 U.S. 18, 24.

{¶35} Even without the evidence appellant sought to suppress, the state still

established appellant's guilt beyond a reasonable doubt. R.C. 2950.05(A) provides

that a Tier III offender must provide written notice to the sheriff at least 20 days prior

to changing his residential address.

{¶36} State's Exhibit One is an offender information-form, “Notice of

Registration Duties of Sexually Oriented Offenders Or Child-Victim Offender” which

appellant signed on May 22, 2008. According to paragraph three of that form, “At

least 20 days prior to changing your residence address * * * you are required to * * *

provide written notice of the residence * * * to the sheriff with whom you most recently

registered the address.” (State's Ex. 1). By signing the form, appellant acknowledged

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that the requirement had been explained to him and that he understood that he must

abide by all of the provisions of R.C. 2950.05.

{¶37} Sgt. Bradley testified that on May 22, 2008, appellant registered his

residence as 7383 Depot Street. (Trial Tr. 153; State’s Ex. 1). Appellant himself

testified that he moved from the Depot Street address on June 22, 2008, to his

grandmother’s residence. (Trial Tr. 189-91). Appellant then testified that he did not

inform Sgt. Bradley of his move until June 30, 2008. (Trial Tr. 191-92). Based on

these facts, by his own testimony, appellant clearly disregarded his duty when he

failed to notify the sheriff prior to moving and in writing and, therefore, he violated

R.C. 2950.05(A). These facts established appellant's guilt beyond a reasonable

doubt.

{¶38} Accordingly, appellant’s second assignment of error is without merit.

{¶39} Appellant's third assignment of error states:

{¶40} “DEFENDANT/APPELLANT'S CONVICTION MUST BE REVERSED

AND A NEW TRIAL ORDERED DUE TO PROSECUTORIAL MISCONDUCT

AND/OR IMPROPER COMMENTS BY THE TRIAL COURT JUDGE.”

{¶41} Appellant's arguments for this assignment of error fall into four

categories. The first three assert prosecutorial misconduct.

{¶42} The test for prosecutorial misconduct is whether the conduct

complained of deprived the defendant of a fair trial. State v. Fears (1999), 86 Ohio

St.3d 329, 332. In reviewing a prosecutor's alleged misconduct, a court should look

at whether the prosecutor's remarks were improper and whether the prosecutor's

remarks affected the appellant's substantial rights. State v. Smith (1984), 14 Ohio

St.3d 13, 14. “[T]he touchstone of analysis ‘is the fairness of the trial, not the

culpability of the prosecutor.’ ” State v. Hanna, 95 Ohio St.3d 285, 2002-Ohio-2221,

at ¶ 61, quoting Smith v. Phillips (1982), 455 U.S. 209, 219. An appellate court

should not deem a trial unfair if, in the context of the entire trial, it appears clear

beyond a reasonable doubt that the jury would have found the defendant guilty even

without the improper comments. State v. LaMar, 95 Ohio St.3d 181, 2002-Ohio-

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2128, at ¶ 121. A failure to object to alleged prosecutorial misconduct generally

waives all but plain error. Hanna at ¶ 77; LaMar at ¶ 126.

{¶43} Parties are generally afforded wide latitude in closing arguments. State

v. Spivey (Jan. 13, 1997), 7th Dist. No. 89-CA-172; State v. Smith (1984), 14 Ohio

St.3d 13, 14. When reviewing whether a prosecutor's remarks during closing

arguments were prejudicial, we must view the closing argument in its entirety State v.

Treesh (2001), 90 Ohio St.3d 460, 466; State v. Moritz (1980), 63 Ohio St.2d 150,

157.

{¶44} Appellant failed to object to any of the comments that he now takes

issue with. Therefore, a plain error review applies here. Plain error is one in which

but for the error, the outcome of the trial would have been different. State v. Long

(1978), 53 Ohio St.2d 91, 97.

{¶45} Appellant first argues that a select number of statements made by the

prosecutor during closing argument qualify as prosecutorial misconduct. Appellant

cites the prosecutor's statement that “[An affirmative defense] kind of is a loop hole or

an out for the defendant.” (Trial Tr. 244). Appellant also cites when the prosecutor

asked, “Who's snowing who?” (Trial Tr. 235). Thirdly, appellant cites to the

prosecutor’s reference to appellant changing his testimony and said, “Come on.

Come on. See through the smoke. Keep your eye on the ball here folks.” (Trial Tr.

243). According to appellant, these statements implied to the jury that his evidence

was somehow concocted and unworthy of consideration or belief.

{¶46} On review of the transcript, these comments were not improper. In

context, the “loop hole” remark, although not very artful, attempted to describe what

affirmative defenses are in general and did not specifically address appellant's

defense. (Trial Tr. 244). And in reference to appellant changing his testimony, the

“See through the smoke” remark by the prosecutor was fair because it stopped short

of calling appellant a liar. (Trial Tr. 243). Lastly, given the context of appellant

accusing the deputy of lying, the “who's snowing who?” comment also was fair. (Trial

Tr. 235).

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{¶47} For appellant's second category of alleged prosecutorial misconduct, he

refers to the prosecutor's repeated references to appellant as a “convicted rapist/sex

offender/sexual predator.” (Trial Tr. 47, 109, 110, 112, 114, 152, 153, 154, 159, 201,

202, 209, 231, 233, 234, 243, 245). Appellant argues that although these statements

are true, the prosecutor improperly repeated such statements for purposes other than

establishing appellant's registration requirements.

{¶48} Appellant was properly characterized as a convicted sex offender in a

failure to notify case. Because appellant is a convicted sex offender, the comments,

while perhaps excessively repetitive, were not improper, and appellant was not

unfairly prejudiced.

{¶49} For his third category, appellant points to the prosecutor's comment

during closing arguments about appellant failing to call his grandmother or any other

family member to corroborate his story. (Trial Tr. 242).

{¶50} This comment was not improper given that appellant put on testimony

about moving to his grandmother’s house and placing calls from her house to Sgt.

Bradley to notify him of appellant’s change in address.

{¶51} In addition to appellant's three main categories of alleged

prosecutorial misconduct, appellant argues that the prosecutor's comments regarding

his failure to notify the Adult Parole Authority of his change of address, even though

appellant was not charged with that conduct, was prosecutorial misconduct. (Trial Tr.

202, 213, 233). Appellant also argues that the prosecutor's speculative comment

that appellant's family expected to find him in jail was misconduct as well. (Trial Tr.

209, 246).

{¶52} Regarding the prosecutor's comments about appellant's failure to

notify the Adult Parole Authority of his change of address, that comment was relevant

as to whether appellant had been keeping up to date on any of his registrations, and

thus was appropriate. And regarding the prosecutor's comments about appellant's

family expecting to find him in jail, such comments were not speculation given the

fact that appellant testified his family called to see if he was in jail. (Trial Tr. 196).

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{¶53} Appellant's final allegations of prejudice involve the trial court judge.

Appellant argues he was substantially prejudiced when the judge stated that

appellant's underlying rape conviction involved a young girl. (Trial Tr. 87). Appellant

also points to the judge's jury instruction that included a reference to his prison term.

(Trial Tr. 250).

{¶54} Firstly, it was a juror during voir dire, not the judge, who made the

comment about the offense involving a young girl. (Trial Tr. 87). Appellant later used

a peremptory challenge to remove her from the jury. (Trial Tr. 93). Secondly, an

element of appellant's offense required proof of a past conviction. Thus, appellant's

argument that the trial court’s instruction was improper is without merit.

{¶55} Based on the foregoing, appellant's third assignment of error is

without merit.

{¶56} For the reasons stated above, appellant's conviction is hereby

affirmed.

Waite, J., concurs.

DeGenaro, J., concurs.