[Cite as State v. Howard, 134 Ohio St.3d 467, 2012-Ohio-5738.] 

THE STATE OF OHIO, APPELLANT, v. HOWARD, APPELLEE. 

[Cite as State v. Howard, 134 Ohio St.3d 467, 2012-Ohio-5738.] 

Criminal law—Sex offenders—R.C. 2950.05—Requirement to give notice of 

change of residence address—Penalty for failure to give notice—Former 

R.C. 2950.99 as it existed immediately before repeal of Megan’s Law by 

Adam Walsh Act governs penalty for offenders originally classified under 

Megan’s Law who violate notice requirements after effective date of Adam 

Walsh Act. 

(No. 2011-2126—Submitted August 22, 2012—Decided December 6, 2012.) 

APPEAL from the Court of Appeals for Montgomery County, No. 24680, 195 Ohio 

App.3d 802, 2011-Ohio-5693. 

_________________ 

 PFEIFER, J. 

{¶ 1} The issue we address in this case is whether current R.C. 2950.99 or 

former R.C. 2950.99 governs the penalty for sex offenders originally classified 

under Megan’s Law who violate former R.C. 2950.05 by failing to give proper 

notice of an address change. We hold that former R.C. 2950.99 governs the 

penalty in such cases, specifically, the version of R.C. 2950.99 in place 

immediately prior to the repeal of Megan’s Law by the Adam Walsh Act. 

Factual and Procedural Background 

{¶ 2} The factual background in this case is as much about the changing 

landscape of sex-offender-registration law in Ohio as it is about defendantappellee Donny Howard. There is no dispute regarding the operative facts. In 

September 2000, Howard was convicted of rape, a first-degree felony, and 

sentenced to four years in prison. At that time, Howard was designated a habitual 

sex offender pursuant to Ohio’s Megan’s Law, which had been adopted in 1996 
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and became effective on January 1, 1997. Am.Sub.H.B. No. 180, 146 Ohio Laws, 

Part II, 2560, 2601. Pursuant to that designation, Howard was required to verify 

his address on an annual basis and to notify the sheriff of any change of address. 

Former R.C. 2950.06(B)(2) and 2950.07(B)(2). For offenders whose underlying 

offense was a felony, failure to comply with the reporting requirements of 

Megan’s Law was a fifth-degree felony. Former R.C. 2950.99, 146 Ohio Laws, 

Part II, 2634. 

{¶ 3} Effective July 31, 2003, the General Assembly passed amendments 

to Megan’s Law in Am.Sub.S.B. No. 5 (“S.B. 5”), 150 Ohio Laws, Part IV, 6558, 

6687-6702. One change in the law was an increase in the punishment for failure 

to comply with former R.C. 2950.05; for offenders whose underlying sex offense 

was a first-, second-, or third-degree felony, the violation of R.C. 2950.05 was a 

third-degree felony. 

{¶ 4} In 2007, the General Assembly passed Am.Sub.S.B. No. 10, Ohio’s 

version of the federal Adam Walsh Act (“AWA”), which repealed Megan’s Law 

effective January 1, 2008. Pursuant to the AWA, Howard was reclassified by the 

Ohio Attorney General as a Tier III sex offender, subjecting Howard to Tier III 

notification provisions for life. Am.Sub.S.B. No. 97 also became effective on 

January 1, 2008; it amended R.C. 2950.99 to make a violation of the reporting 

requirements of the AWA a felony of the same degree as the most serious sexoffense felony that was the basis for the classification. Thus, if applied to 

Howard, an R.C. 2950.05 reporting violation would be a first-degree felony. 

{¶ 5} On June 3, 2010, Howard was indicted for a first-degree felony for 

failing to notify the sheriff of a change of address 20 days prior to the change. 

Howard pled no contest to the charge; on October 28, 2010, the trial court 

sentenced Howard to the mandatory minimum prison term of three years. 

{¶ 6} Also on June 3, 2010—the day of Howard’s indictment—this court 

declared unconstitutional the reclassification provisions of the AWA in State v. 
January Term, 2012 

3 

Bodyke, 126 Ohio St.3d 266, 2010-Ohio-2424, 933 N.E.2d 753. Pursuant to 

Bodyke, the classifications and community-notification and registration orders 

imposed by judges before the AWA were reinstated. Bodyke at ¶ 66. Thus, for 

Howard, his original classification as a habitual sex offender and the registration 

and notification requirements for that classification were reinstated. 

{¶ 7} On June 13, 2011, Howard filed a delayed appeal with the Second 

District Court of Appeals, claiming that the trial court had erred in convicting him 

of a first-degree felony; Howard based his appeal on State v. Milby, 2d Dist. No. 

23798, 2010-Ohio-6344, 2010 WL 5480656. In Milby, the defendant had been 

convicted of a rape in 1983 and was classified as a sex offender. In 2003, while 

incarcerated, he was reclassified as a sexual predator. He was apparently 

reclassified under the AWA as a Tier III sex offender. He violated his reporting 

requirements in 2009. 

{¶ 8} In a decision subsequent to Bodyke, the Milby court struck down the 

Tier III reclassification and reinstated the previous sexual-predator classification 

and the attendant reporting order. The court further held that the increased 

penalty imposed by the AWA could not be applied to the defendant. The cause 

was remanded for resentencing as a third-degree instead of a first-degree felony. 

{¶ 9} In the instant case, the court below applied Milby: 

As in Milby, when Howard’s original classification and 

registration requirements are applied, his conviction for failure to 

notify is not offended. There is no dispute that under former law, 

Howard was required to provide written notice of a change of 

address at least 20 days prior to changing his address of residence. 

See former R.C. 2950.05(A). However, the amendment of R.C. 

2950.99 changed the penalty for failure to notify from a felony of 

the fifth degree to a felony of the first degree, based upon the 
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penalty for the underlying offense of rape, and Howard was subject 

to a mandatory term of incarceration. As in Milby, the fact that 

Howard had committed his offense of failure to notify after the 

effective date of S.B. 97 does not affect the outcome herein as the 

state asserts. Pursuant to Milby, we find that the trial court erred 

when it convicted Howard of a first-degree felony and sentenced 

him accordingly, instead of finding him guilty of a fifth-degree 

felony. 

State v. Howard, 195 Ohio App.3d 802, 2011-Ohio-5693, 961 N.E.2d 1196, ¶ 12. 

The court reversed Howard’s sentence and remanded the matter to the trial court 

for resentencing. 

{¶ 10} The appellate court applied the penalty that existed on the date of 

the defendant’s original classification under Megan’s Law in September 2000. 

The dissenter in Howard argued that the applicable penalty was the Megan’s Law 

penalty provision in place immediately before the AWA repealed Megan’s Law, 

i.e., the third-degree-felony provision first instituted in 2003 via S.B. 5: 

Based on Milby, as followed in [State v.] Johnson [2d Dist. 

No. 24029, 2011-Ohio-2069] and [State v.] Alexander, [2d Dist. 

No. 24119, 2011-Ohio-4015], this court has held that when a 

failure-to-notify case is reversed after an improper AWA 

reclassification, the penalty for violation of failure to notify [sic] 

reverts to that penalty that was in effect before the “offending” 

AWA legislation, which was effective January 1, 2008. Prior to 

enactment of AWA, the penalty for failure to notify for underlying 

[first-degree felonies through third-degree felonies] was a felony of 

the third degree. Consequently, I would remand this case for 
January Term, 2012 

5 

resentencing of the defendant for a conviction of [a third-degree 

felony]. 

Howard at ¶ 21 (Hall, J., concurring in part and dissenting in part). 

{¶ 11} The state appealed, raising the following proposition of law: “The 

felony sentencing statute R.C. 2950.99 is not applied retroactively when the 

conduct for which a defendant is convicted and sentenced occurred after the 

effective date of the statute or January 1, 2008.” 

{¶ 12} The cause is before this court upon the acceptance of a 

discretionary appeal. State v. Howard, 131 Ohio St.3d 1472, 2012-Ohio-896, 962 

N.E.2d 803. 

Law and Analysis 

{¶ 13} This is an appeal brought by the state. The only issue we address is 

which penalty provision—that of Megan’s Law or the AWA—applies to sex 

offenders originally classified under Megan’s Law who commit violations of 

notice-of-address-change requirements after the effective date of the AWA. The 

defendant has not raised the issue whether he was properly indicted in this case, 

that is, whether he can be convicted of a failure to provide notice of a change of 

address under Megan’s Law when he was indicted for a notice violation under the 

AWA. We address that issue in another case announced today, State v. Brunning, 

134 Ohio St.3d 438, 2012-Ohio-5752, 983 N.E.2d 316. 

The Effect of Bodyke, Gingell, and Williams

{¶ 14} In Bodyke, 126 Ohio St.3d 266, 2010-Ohio-2424, 933 N.E.2d 753, 

this court held that the reclassification provisions in the AWA, R.C. 2950.031 and 

2950.032, were unconstitutional and severed them from the AWA. The court 

spelled out what that meant for offenders who were originally classified under 

Megan’s Law and were then reclassified under the AWA: “R.C. 2950.031 and 

2950.032 may not be applied to offenders previously adjudicated by judges under 
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Megan’s Law, and the classifications and community-notification and registration 

orders imposed previously by judges are reinstated.” Bodyke at ¶ 66. 

{¶ 15} In State v. Gingell, 128 Ohio St.3d 444, 2011-Ohio-1481, 946 

N.E.2d 192, the defendant—who was originally classified as a sexually oriented 

offender under Megan’s Law—was charged with an R.C. 2950.06 registration 

violation under the AWA. This court held that pursuant to Bodyke, “Gingell’s 

original classification under Megan’s Law and the associated communitynotification and registration order were reinstated.” Id. at ¶ 8. The court held that 

the current version of R.C. 2950.06 did not apply to Gingell. Id. Instead, “Gingell 

remained accountable for the yearly reporting requirement under Megan’s Law 

* * *.” Id. 

{¶ 16} In State v. Williams, 129 Ohio St.3d 344, 2011-Ohio-3374, 952 

N.E.2d 1108, this court addressed the case of a defendant who had committed a 

sex offense before, but was sentenced after, the AWA became effective. The trial 

court designated Williams a Tier II sex offender, and he was automatically 

subjected to the concomitant registration and notification provisions of the AWA. 

This court declared that the AWA was punitive and was unconstitutional as 

applied to Williams: “2007 Am.Sub.S.B. No. 10, as applied to defendants who 

committed sex offenses prior to its enactment, violates Section 28, Article II of 

the Ohio Constitution, which prohibits the General Assembly from passing 

retroactive laws.” Id. at syllabus. This court remanded the case “for resentencing 

under the law in effect at the time Williams committed the offense.” Id. at ¶ 23. 

Thus, this court ordered that the provisions of Megan’s Law would apply to 

defendants who committed their offenses before the enactment date of the AWA. 

In another case decided today, In re Bruce S., 134 Ohio St.3d 477, 2012-Ohio5696, 983 N.E.2d 350, this court clarified that only persons who commit their 

underlying crime on or after the effective date of the AWA—January 1, 2008—

are subject to the requirements of the AWA. 
January Term, 2012 

7 

{¶ 17} Therefore, Ohio has, in effect, separate statutory schemes 

governing sex offenders depending on when they committed their underlying 

offense. Those who committed their offense before the effective date of the 

AWA are subject to the provisions of Megan’s Law; those who committed their 

offense after the effective date of the AWA are subject to the AWA. 

Applicability of R.C. 2950.99 to Violations of Former R.C. 2950.05 

{¶ 18} The current version of R.C. 2950.99 was not a part of S.B. 10; it 

was contained in a separate bill passed at the same time, Am.Sub.S.B. No. 97. 

We did not opine on the constitutionality of S.B. 97 in Bodyke, Gingell, or 

Williams. Current R.C. 2950.99 remains in full vigor for those to whom it 

applies—offenders who violate the requirements of R.C. Chapter 2950 as they 

currently exist, i.e., as set forth in the AWA. It reads, “[W]hoever violates a 

prohibition in section 2950.04, 2950.041, 2950.05, or 2950.06 of the Revised 

Code shall be punished as follows * * *.” 

{¶ 19} However, in this case we deal with a defendant who violated 

former R.C. 2950.05, not the current R.C. 2950.05 for which R.C. 2950.99 

provides penalties. Pursuant to Bodyke, Howard’s original classification under 

Megan’s Law and the associated community-notification and registration order 

were reinstated. See Bodyke, 126 Ohio St.3d 266, 2010-Ohio-2424, 933 N.E.2d 

753, at ¶ 66. Howard must abide by the requirements of former R.C. 2950.05, not 

current R.C. 2950.05. R.C. 2950.99 describes punishments for people who 

violate the requirements of the AWA—it does not reach back to cover offenders 

who must abide by Megan’s Law. Former R.C. 2950.99 addresses punishments 

for offenders who violate the provisions of Megan’s Law, including former R.C. 

2950.05. Current R.C. 2950.99 applies to a different statutory landscape; by its 

own terms it applies to offenders who violate current R.C. 2950.05. Howard’s 

sex-offender-registration obligations are controlled by Megan’s Law. The penalty 

provisions under Megan’s law thus also apply. 
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Effect of Changes to R.C. 2950.99 While Megan’s Law Was in Effect 

{¶ 20} As noted above, R.C. 2950.99 as it existed under Megan’s Law was 

in effect from January 1, 1997, through January 1, 2008. It was amended in 2003 

to increase the punishment for violating reporting requirements. The appellate 

panel below was split on the question of which of Megan’s Law’s penalty 

provisions should apply to a person who violates former R.C. 2950.05. The 

majority applied the version in place in 2000 when the defendant was originally 

classified under Megan’s Law. 195 Ohio App.3d 802, 2011-Ohio-5693, 961 

N.E.2d 1196, ¶ 12. The dissenting judge would have applied the version in place 

immediately before Megan’s Law was supplanted by the AWA. Id. at ¶ 21 (Hall, 

J., concurring in part and dissenting in part). In Howard’s case, the difference is 

between a fifth-degree felony—the law at the time of his classification—and a 

third-degree felony—the law at the time that Megan’s Law was repealed and 

replaced by the AWA. 

{¶ 21} We hold that the appropriate version of former R.C. 2950.99 to 

apply to Howard is the one in place at the time that Megan’s Law was repealed. 

That reflects the state of the law before Megan’s Law was repealed, and that is the 

statutory scheme governing sex offenders originally classified pursuant to 

Megan’s Law. 

{¶ 22} Howard argues that the imposition of any penalty other than the 

one in effect when Howard’s duties under R.C. 2950.05 arose would violate the 

Retroactivity Clause of the Ohio Constitution, Article II, Section 28, and the Ex 

Post Facto Clause of the United States Constitution. We disagree. The 

imposition of S.B. 5 penalties does not create an increased penalty for Howard’s 

original sex offense, but rather imposes a penalty related entirely to his later, 

separate violation of former R.C. 2950.05, a new crime. That is, the penalty is not 

an increased penalty for his original sex offense, but rather a penalty for a new 

offense. 
January Term, 2012 

9 

{¶ 23} In State v. Cook, 83 Ohio St.3d 404, 700 N.E.2d 570 (1998), this 

court unanimously upheld the constitutionality of Megan’s Law against 

challenges under the Retroactivity Clause and the Ex Post Facto Clause. In 

determining whether Megan’s Law violated the Ex Post Facto Clause, this court 

employed guideposts developed by the United States Supreme Court in Kennedy 

v. Mendoza-Martinez, 372 U.S. 144, 83 S.Ct. 554, 9 L.Ed.2d 644 (1963). The 

guideposts are designed to aid courts in determining whether a statute is so 

punitive as to violate the constitutional prohibition against ex post facto laws. 

One guidepost asks “ ‘whether the behavior to which [the statute] applies is 

already a crime.’ ” Cook at 418, quoting Mendoza-Martinez at 168. In addressing 

that factor, the Cook court wrote, 

Even prior to the promulgation of the current version of 

R.C. Chapter 2950, failure to register was a punishable offense. 

See former R.C. 2950.99, 130 Ohio Laws 671. Thus, any such 

punishment flows from a failure to register, a new violation of the 

statute, not from a past sex offense. In other words, the 

punishment is not applied retroactively for an act that was 

committed previously, but for a violation of law committed 

subsequent to the enactment of the law. 

Cook at 420-421. 

{¶ 24} For offenders classified under Megan’s Law, the sentence changes 

imposed by S.B. 5 did not apply to the offender’s original sex offense, but instead 

applied to a prospective failure to meet the registration requirements of R.C. 

2950.05. 

{¶ 25} In State v. Adkins, 129 Ohio St.3d 287, 2011-Ohio-3141, 951 

N.E.2d 766, this court considered the constitutionality of R.C. 2901.08 as applied 
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to a defendant indicted for drunk driving in 2007. The defendant in Adkins had a 

record of six such offenses, including a 1987 juvenile adjudication. In 1996, R.C. 

2901.08 was amended to include juvenile adjudications as one of the five 

convictions over a span of 20 years that could support an enhanced sentence for 

driving while impaired. Adkins argued that the statutory change altered the 

nature of his juvenile adjudication and was unconstitutionally retroactive. This 

court disagreed: 

Adkins is not being punished for a previous juvenile adjudication; 

he is being punished for his current offense. As the United States 

Supreme Court has held, “When a defendant is given a higher 

sentence under a recidivism statute—or for that matter, when a 

sentencing judge, under a guidelines regime or a discretionary 

sentencing system, increases a sentence based on the defendant’s 

criminal history—100% of the punishment is for the offense of 

conviction. None is for the prior convictions or the defendant’s 

‘status as a recidivist.’ The sentence ‘is a stiffened penalty for the 

latest crime, which is considered to be an aggravated offense 

because [it is] a repetitive one.’ Gryger v. Burke, 334 U.S. 728, 

732, 68 S.Ct. 1256, 92 L.Ed. 1683 (1948).” United States v. 

Rodriquez (2008), 553 U.S. 377, 386, 128 S.Ct. 1783, 170 L.Ed.2d 

719. 

Adkins at ¶ 15. 

{¶ 26} When S.B. 5 increased the punishment for a violation of R.C. 

2905.05, Howard had not yet committed any such violation. He also had notice 

of the increased severity of a violation, a fact that dooms his ex post facto claim: 
January Term, 2012 

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“Critical to relief under the Ex Post Facto Clause is not an 

individual’s right to less punishment, but the lack of fair notice and 

governmental restraint when the legislature increases punishment 

beyond what was prescribed when the crime was consummated.” 

Weaver v. Graham (1981), 450 U.S. 24, 30, 101 S.Ct. 960, 67 

L.Ed.2d 17. 

Adkins, 129 Ohio St.3d 287, 2011-Ohio-3141, 951 N.E.2d 766, ¶ 18. 

{¶ 27} As this court pointed out in Adkins, “The increase in punishment 

provided for in R.C. 2901.08 was established before Adkins committed the 

offense at issue.” Id. Likewise, here, the increase in punishment in R.C. 2950.99 

was established before Howard violated former R.C. 2950.05. 

{¶ 28} We find that the penalty enhancements of S.B. 5 do not relate back 

to the original sex offense, but instead relate to a defendant’s failure to meet the 

requirements of R.C. 2950.05 subsequent to the passage of S.B. 5. The 

enhancements therefore do not violate the Ex Post Facto Clause of the United 

States Constitution or the Retroactivity Clause of the Ohio Constitution. 

Conclusion 

{¶ 29} We hold that for a defendant whose sex-offender classification was 

determined under Megan’s Law, the penalty for a violation of the reporting 

requirements of former R.C. 2950.05 that occurs after Megan’s Law was 

supplanted by the AWA is the penalty set forth in the version of R.C. 2950.99 in 

place just before the effective date of the AWA. In the case of Howard, then, his 

violation of R.C. 2950.05 was a felony of the third degree. 

{¶ 30} We agree with the judgment of the court of appeals that current 

R.C. 2950.99 does not apply to sex offenders originally classified under Megan’s 

Law. However, we reverse the judgment of the court of appeals because it 

imposed the penalty provision in place when Howard was classified rather than 
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the penalty provision in place immediately before Megan’s Law was replaced by 

the AWA. The cause is remanded to the trial court for resentencing as a thirddegree felony. 

Judgment reversed 

and cause remanded. 

 O’CONNOR, C.J., and LUNDBERG STRATTON and MCGEE BROWN, JJ., 

concur. 

 O’DONNELL and CUPP, JJ., dissent. 

 LANZINGER, J., dissents and would remand for resentencing as a fifthdegree felony. 

_____________ 

 CUPP, J., dissenting. 

{¶ 31} Because I believe that the majority opinion’s reasoning is 

fundamentally flawed and undermines well-settled precedent in a way that will 

lead to substantial negative consequences in areas of the criminal law beyond 

those involving sex offenders, I respectfully dissent. 

{¶ 32} I would adopt the state’s proposition of law, which asserts that 

current R.C. 2950.99, enacted by Am.Sub.S.B. No. 97 (“S.B. 97”), effective 

January 1, 2008, “is not applied retroactively when the conduct for which a 

defendant is convicted and sentenced occurred after the effective date of the 

statute.” 

{¶ 33} I agree with the well-reasoned partial dissent of Judge Stewart in 

State v. Page, 8th Dist. No. 94369, 2011-Ohio-83: 

The enhanced penalty provision [of S.B. 97] is not couched 

in terms of the new classifications. It refers only to “violations” of 

the reporting statutes, not to the type of tier offender involved. 

Moreover, there is no question that the General Assembly could 
January Term, 2012 

13 

validly pass a law that prospectively enhances a penalty for repeat 

offenders. As the First District Court of Appeals noted when 

addressing a similar issue regarding a sentencing enhancement, “[the 

statute] is not violative of the constitutional prohibition against ex 

post facto laws because it is not ‘retrospective,’ i.e., it does not 

‘change * * * the legal consequences of acts completed before its 

effective date,’ but simply mandates an enhanced penalty for acts 

committed after the effective date of the provision if the defendant 

has previously been convicted[.]” State v. Clark (Aug. 5, 1992), 1st 

Dist. No. C-910541 [1992 WL 188535]. 

Id. at ¶ 16 (Stewart, J., concurring in part and dissenting in part). 

{¶ 34} I also agree with the reasoning of State v. Freeman, 1st Dist. No. 

C-100389, 2011-Ohio-4357: 

The penalty provisions contained in current R.C. 2950.99 

became effective January 1, 2008. Freeman pleaded guilty to 

failing to notify the sheriff of an address change on or about 

October 15, 2009. Although Freeman’s duty to register stemmed 

from his sex offense, his failure to notify the sheriff of an address 

change was a new offense that he had committed after the 

effective date of current R.C. 2950.99’s penalty provisions. 

Therefore, current R.C. 2950.99 was not applied retroactively to 

Freeman’s conduct. 

(Footnote omitted.) Id. at ¶ 18. 

{¶ 35} In State v. Cook, 83 Ohio St.3d 404, 421, 700 N.E.2d 570 (1998), 

we recognized that despite statutory changes, the type of punishment at issue in 
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this case “flows from a failure to register, a new violation of the statute, not from 

a past sex offense,” so “the punishment is not applied retroactively for an act that 

was committed previously, but for a violation of law committed subsequent to the 

enactment of the law.” (Emphasis added.) See also State v. Adkins, 129 Ohio 

St.3d 287, 2011-Ohio-3141, 951 N.E.2d 766, ¶ 18 (there is no ex post facto 

violation when an increase in punishment is established before an offense is 

committed). 

{¶ 36} The majority cites Cook and Adkins in its partial application of 

those precedents, but fails to appreciate that the principles stated in those 

decisions definitively require the penalties of current R.C. 2950.99 to fully apply 

in this case. 

{¶ 37} The majority states, “When [Am.Sub.S.B. No.] 5 increased the 

punishment for a violation of R.C. 2905.05, Howard had not yet committed any 

such violation. He also had notice of the increased severity of a violation * * *.” 

Majority opinion at ¶ 26. The majority further states that, consistent with Adkins, 

“the increase in punishment in R.C. 2950.99 was established [in S.B. 5] before 

Howard violated former R.C. 2950.05,” majority opinion at ¶ 27, so that there can 

be no ex post facto violation. 

{¶ 38} The majority’s statements regarding S.B. 5 also apply with equal 

force to the changes to R.C. 2950.99 accomplished by S.B. 97. The situation is 

exactly the same, and the same principles govern the analysis. Consequently, 

when S.B. 97 increased the punishment for a violation of R.C. 2905.05, “Howard 

had not yet committed any such violation,” and he therefore can appropriately be 

subject to the penalties of current R.C. 2950.99. 

{¶ 39} I would fully reverse the judgment of the court of appeals and 

would hold that current R.C. 2950.99 should govern the penalty for the sex 

offender in this case. Current R.C. 2950.99 should also govern the penalty for 

other similarly situated sex offenders. 
January Term, 2012 

15 

 O’DONNELL, J., concurs in the foregoing opinion. 

________________ 

Mathias H. Heck Jr., Montgomery County Prosecuting Attorney, and 

Johnna M. Shia, Assistant Prosecuting Attorney, for appellant. 

Marshall G. Lachman, for appellee. 

William D. Mason, Cuyahoga County Prosecuting Attorney, and Daniel T. 

Van, Assistant Prosecuting Attorney, urging reversal for amicus curiae, Cuyahoga 

County Prosecutor’s Office. 

______________________