[Cite as State v. Barnes , 2011-Ohio-2424.]

IN THE COURT OF APPEALS FOR MONTGOMERY COUNTY, OHIO STATE OF OHIO : Plaintiff-Appellee : C.A. CASE NO. 24201

v. : T.C. NO. 09 CR 442 JOHN W. BARNES : (Criminal appeal from Common Pleas Court) Defendant-Appellant :

:

. . . . . . . . . . O P I N I O N Rendered on the 20 th day of May , 2011.

. . . . . . . . . . JOHNNA M. SHIA, Atty. Reg. No. 0067685, Assistant Prosecuting Attorney, 301 W. Third Street, 5 th Floor, Dayton, Ohio 45422 Attorney for Plaintiff-Appellee DANIEL J. O’BRIEN, Atty. Reg. No. 0031461, 1210 Talbott Tower, 131 N. Ludlow Street, Dayton, Ohio 45402 Attorney for Defendant-Appellant

. . . . . . . . . . DONOVAN, J. {¶ 1} Defendant-appellant John W. Barnes appeals from his conviction and sentence for one count of unlawful sexual conduct with a minor, in violation R.C. 2907.04(A), a misdemeanor of the first degree, and one count of tampering with evidence, in2 violation of R.C. 2921.12(A)(1), a felony of the third degree.
I {¶ 2} On February 20, 2009, Barnes was indicted for three counts of sexual battery (coach/scout leader), in violation of R.C. 2907.03(A)(9), all felonies of the third degree. The charges were brought in response to ev ents which occurred between the dates of December 23, 2008, and January 8, 2009, in which Ba rnes, a volunteer coach for the girls’ varsity basketball team at Dixie High School in New Lebanon, Ohio, engaged in sexual conduct with a fourteen year-old female student at the school. Barnes was twenty-one years old at the time the offenses occurred. We also note that Barnes had recently graduated from Dixie High School in 2005. {¶ 3} Barnes filed a motion to suppress on March 27, 2009. After a hearing held on May 28, 2009, the trial court issued a wr itten decision overruling Barnes’ motion to suppress on June 17, 2009. On September 11, 2009, Ba rnes filed a motion to dismiss all of the counts in the indictment. An evidentiary h earing was held with respect to the motion to dismiss on November 6, 2009. On December 8, 2009, the trial court issued a decision in which it overruled in part a nd sustained in part Barnes’ motion to dismiss. {¶ 4} On June 4, 2010, the State charged Barnes by bill of information with one count of tampering with evid ence and one count of unlawful sexual conduct with a minor. At a hearing on the same day, Barnes pled guilty to the charge of tampering with evidence, and he pled no contest to unlawful sexual conduct with a minor, after which the State dismissed the original indictment . At the plea hearing, the trial court specifically found that Barnes was eighteen years of age or older and th at the he was less than four years older than3 the victim at the time the offense occurred. The court found Barnes guilty on both counts and on July 12, 2010, the trial court sentenced Ba rnes to five years of community control sanctions, which include supervis ion by a sex offender specialis t, completion of sex offender treatment, no contact with the minor victim, and a requirement that Barnes “[abide] by any and all special conditions for se x offenders.” However, as a result of his conviction for unlawful sexual conduct with a minor, a misdem eanor of the first degree, Barnes did not receive a sex offender design ation, nor was he required to register as such. {¶ 5} It is from this judgment that Barnes now appeals.
II {¶ 6} Barnes’ sole assignment of error is as follows: {¶ 7} “THE TRIAL COURT ERRED AND/OR ABUSED ITS DISCRETION IN IMPOSING SPECIAL CONDITIONS FOR SEXUAL OFFENDERS ON DEFENDANT-APPELLANT WHERE HE HAS NOT COMMITTED A ‘SEXUALLY ORIENTED OFFENSE.’” {¶ 8} In his sole assignment, Barnes contends that he was not convicted of a felony “sex offense.” Rather, Barnes points out that he was convicted of unlawful sexual conduct with a minor, in violation of R.C. 2907.04(A), a first degree misdemeanor. Thus, Barnes asserts that the trial court erred when it ordered him to abide by community control sanctions requiring him to complete sex offender trea tment and be supervis ed by a sex crime specialist. {¶ 9} R.C. 2907.04 states in pertinent part: {¶ 10} “(A) No person who is eighteen years of age or older shall engage in sexual4 conduct with another, who is not the spouse of the offender, when the offender knows the other person is thirteen years of age or olde r but less than sixteen years of age, or the offender is reckless in that regard. {¶ 11} “(2) Except as otherwise provided in di vision (B)(4) of this section, if the offender is less than four years older than the other person, unlawful sexual conduct with a minor is a misdemeanor of the first degree.” {¶ 12} Initially, we note that under the facts pres ent in this case, Barnes’ conviction for violation of R.C. 2907.04(A) does not constitute a “sexually oriented offense” as defined in R.C. 2950.01(A)(2) as follows: {¶ 13} “(A) ‘Sexually oriented offense’ mean s any of the following violations or offenses committed by a person, re gardless of the person’s age: {¶ 14} (2) A violation of section 2907.04 of the Revised Code when the offender is less than four years older than the other pers on with whom the offender engaged in sexual conduct, the other person did not cons ent to the sexual conduct , and the offender previously had not been convicted of or pleaded gu ilty to a violation of section 2907.02, 2907.03, or 2907.04 of the Revised Code or a violation of former secti on 2907.12 of the Revised Code.” {¶ 15} The bill of information here did not contain these elements. Had Barnes engaged in sexual conduct with the female victim without her consent, under R.C. 2950.01(A)(2), the crime would have been labe led a “sexually oriented offense,” thus mandating designation of Barnes as a Tier I sex offender/child victim offender” pursuant to R.C. 2950.01(E)(1)(b). Because no evidence was presented that the fe male victim did not consent to the sexual conduct, th e trial court did not designate Barnes as a sex offender, nor5 was there any registration require ment imposed upon him. {¶ 16} Barnes argues that because the natu re of the offense for which he was convicted rendered him statutorily exempt from designation as a sexual offender, the trial court erred when it imposed community cont rol sanctions upon him as if he had been convicted of a sexually oriented offense. We note that Barnes mistakenly asserts that the court imposed registration requirements on him. It is clear from the termination entry filed on July 12, 2010, that the court did not order him to register as a sex offender. Barnes also argues that the following community contro l sanctions were impr oper since he was not convicted of a sexually oriented offense: {¶ 17} “1. A term of Intensive Probation Supe rvision with a Sex Offender Specialist not to exceed five (5) years; *** {¶ 18} “6. A requirement that the offender be assessed for and complete sexual offender treatment; and {¶ 19} “7. A requirement that the offender abid es by any and all special conditions for sex offenders.” {¶ 20} Essentially, Barnes argues that th e trial court cannot impose community control sanctions that treat him as if he we re a convicted sex offender when the crimes for which he was found guilty were not sexually oriented o ffenses. The misdemeanor sentencing-statutes give courts broad discretion to fashion sent ences that are appropriate to each case. See. R.C. 2929.22(A). An appropriate sentence, according to the statutes, is one reasonably calculated to achieve the statutory purposes and principles of sentencing. See R.C. 2929.22(A); see, also, R.C. 2929.21(B). The purposes of sentencing are two-fold: to6 protect the public and to punish the offende r. R.C. 2929.21(A). And the principles of sentencing are that sanctions should be designed with an eye to changing the offender's behavior and rehabilita ting him. See R.C. 2929.21(A). So when deciding what conditions should accompany a community-control sanction, cour ts must consider how to achieve these purposes and principles in the unique ci rcumstances of the particular case. State v. Bowser 186 Ohio App.3d 162, 166, 2010-Ohio-951. {¶ 21} From these purposes and principles, it fo llows that “[p]robationary conditions are to be related to the circumstances of the offense.” State v. Jones (1990), 49 Ohio St.3d 51. In Jones , the Ohio Supreme Court held that “the courts’ discretion in imposing conditions of probation is not limitless,” observing that “[s]uc h conditions cannot be overly broad so as to unnecessarily impinge upon the probationer’s liberty.” Further, “[i]n determining whether a condition of probation is related to the interests of doing justice, rehabilitating the offender, and insuring his good behavior, c ourts should consider whether the condition (1) is reasonably related to rehabilitating the offender, (2) has some relationship to the crime of which the offe nder was convicted, and (3) relates to conduct which is criminal or reasonably related to future criminality and serves the statutory end of probation.” Id. at 53. {¶ 22} In Bowser , we specifically addressed the issue of sex offender conditions, albeit in a situation where the defendant plead to and was convicted of a non-sexual offense. In the instant case, Barnes was convicted of an offense that is sexual in nature. Ultimately
in Bowser, we held that the special sex offender conditions were proper since they were related to the defendant’s orig inal offense. “The evidence the court may consider is not7 confined to the evidence that strictly relates to the conviction offense because the court is no longer concerned, like it was during trial, with the narrow issue of guilt.” Williams v. New York (1949), 337 U.S. 241, 246, 247, 69 S.Ct. 1079, 93 L.Ed. 1337. For this reason, the sentencing process is “less exacting than the process of establishing guilt.” Nichols v. U.S. (1994), 511 U.S. 738, 747, 114 S.Ct. 1921, 128 L. Ed.2d 745. The court’s aim is to “impos[e] an appropriate se ntence based upon the seriousne ss of the crime committed and the character of the defendant.” State v. Cassidy (1984), 21 Ohio App.3d 100, 101, citing State v. Barker (1978), 53 Ohio St.2d 135, 150-151. {¶ 23} At the plea hearing, Barnes admitted that he engaged in sexual conduct with a minor. In fashioning appropr iate community control sanctions, the court considered the recommendations of the probation department containe d in the presentence investigation report (PSI). Presumably, th e trial court found that the conditions imposed upon Barnes such as being supervised by a sex crime sp ecialist, attending sex offender treatment, and abiding by special sex offender conditions were reasonably related to the crime for which he was convicted. Simply because the court include d the requirement that he “[abide] by any and all special conditions for sex offenders”, Barn es was not designated as a sexual offender, nor does he have to register as such. There is currently no ev idence in the record before us that the catch-all language in the final condition in the termination entry imposes any obligation on Barnes not permitted by statute. {¶ 24} Upon review, we conclude that the court’s decision to impose community control sanctions one through six was reasonable under the circ umstances presented by this case. Moreover, these sanctions were designed to achieve the purposes and principles of8 sentencing, being fashioned with an eye to changing Barnes’ behavior and rehabilitating him. Thus, we cannot say that the court abused its discretion in ordering Barnes to comply with the requirements in sanctions one and six. {¶ 25} We note, however, that on July 16, 2010, Barnes filed a motion to clarify the legality and necessity that he be required to abide by any and all of the special conditions for sex offenders set forth in sanc tion seven when he was not convi cted of a sexually oriented offense, nor was he designated a sex offe nder. On December 3, 2010, counsel for Barnes filed a motion to stay imposition of the speci al conditions for sex offenders pending the outcome of his appeal. The tr ial court modified Barnes’ community control supervision by a sex offender specialist to basic supervision and stayed imposition of the remainder of his sanctions pending his appeal in an entry f iled on December 15, 2010. On the same day, the court filed another entry in wh ich it held that it was without jurisdiction to rule on Barnes’ motion to clarify because he filed a notice of appeal with this Court. {¶ 26} The record is not clear as to dete rmine whether the seventh condition is wholly inapplicable to Barnes since he has not been designated as a sexually oriented offender. Thus, the trial cour t should address this issue in a hearing pursuant to our remand.

{¶ 27} Barnes’ sole assignment of error is ove rruled in part and remanded in part for further proceedings.
III {¶ 28} The judgment of the trial court is affi rmed in part and remanded in part in order to allow the trial court to conduct a hearing wherein the general conditions set forth in9 Barnes’ seventh community control sanction can be identified with pa rticularity but should not include restraints limited to those indi viduals sex offenders under R.C. 2950.01(B)(1).

. . . . . . . . . . GRADY, P.J. and HALL, J., concur. Copies mailed to: Johnna M. Shia Daniel J. O’Brien Hon. Mary L. Wiseman