[Cite as In re Messmer, 2010-Ohio-1088.]

IN THE COURT OF APPEALS OF OHIO 

THIRD APPELLATE DISTRICT 

WYANDOT COUNTY 

 

IN THE MATTER OF: 

 CASE NO. 16-09-17 

 JUSTIN A. MESSMER, 

ADJUDICATED DELINQUENT CHILD. O P I N I O N 

 

Appeal from Wyandot County Common Pleas Court 

Juvenile Division 

Trial Court No. A 2071139 

Judgment Affirmed 

Date of Decision: March 22, 2010 

 

APPEARANCES: 

Amanda J. Powell for Appellant 

Douglas D. Rowland for Appellee 
Case No. 16-09-17 

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ROGERS, J.

{¶1} Defendant-Appellant, Justin Messmer, appeals from the judgment of 

the Court of Common Pleas of Wyandot County, Juvenile Division, designating 

him a Tier II sex offender. On appeal, Messmer argues that the trial court abused 

its discretion in classifying him as a Tier II sex offender based on a finding that the 

classification was mandated by his offense; that the application of Senate Bill 10 

(“S.B. 10”) to his case resulted in a violation of his due process rights and right to 

equal protection under the United States and Ohio Constitutions; and, that S.B. 

10’s application violated the Ex Post Facto Clause of the United States 

Constitution and the Retroactivity Clause of the Ohio Constitution. Based on the 

following, we affirm the judgment of the trial court. 

{¶2} In September 2007, the Upper Sandusky Police Department filed a 

complaint alleging Messmer was a delinquent child on one count of gross sexual 

imposition in violation of R.C. 2907.05(A)(4) and 2152.02(F), a felony of the third 

degree if committed by an adult. The complaint arose from allegations that 

Messmer had sexual contact with his eight year-old sister. Subsequently, the 

juvenile court entered a denial of the allegation on Messmer’s behalf. 

{¶3} In October 2007, Messmer withdrew his denial to the complaint and 

entered an admission to the charge of gross sexual imposition, with the juvenile 

court accepting the admission and adjudicating him a delinquent child. 
Case No. 16-09-17 

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{¶4} In January 2008, the juvenile court proceeded to disposition, 

classifying Messmer as a Tier II sex offender, committing him to the Department 

of Youth Services (“DYS”) for a minimum period of six months, and up to a 

maximum period not to exceed his twenty-first birthday, and ordering him to 

complete fifty hours of community service and to have no contact with a juvenile 

without adult supervision. 

{¶5} In September 2008, this Court reversed the judgment of the juvenile 

court in In re Messmer, 3d Dist. No. 16-08-03, 2008-Ohio-4955, finding that 

Messmer’s admission to the charge of gross sexual imposition was not knowing, 

voluntary, and intelligent because the juvenile court failed to comply with Juv.R. 

29(D) in accepting Messmer’s admission. 

{¶6} In October 2008, Messmer re-entered his admission to the charge of 

gross sexual imposition, and the juvenile court accepted the admission and 

adjudicated him a delinquent child. Thereafter, Messmer was again committed to 

DYS for a minimum period of six months, and up to a maximum period not to 

exceed his twenty-first birthday, and ordered to complete fifty hours of community 

service and to have no contact with a juvenile without adult supervision. 

{¶7} In August 2009, the juvenile court conducted a juvenile sexual 

offender designation hearing, in which it categorized Messmer as a Tier II sexual 

offender. 
Case No. 16-09-17 

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{¶8} It is from the juvenile court’s sexual offender designation that 

Messmer appeals, presenting the following assignments of error for our review. 

Assignment of Error No. I 

THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT 

FOUND THAT JUSTIN M’S CLASSIFICATION AS A TIER II 

JUVENILE SEX OFFENDER REGISTRANT WAS OFFENSEBASED, IN VIOLATION OF R.C. 2950.01(E)-(G). (A-7); 

(T.PP. 2-6). 

Assignment of Error No. II 

THE TRIAL COURT ERRED WHEN IT FOUND SENATE 

BILL 10 CONSTITUTIONAL AS APPLIED TO JUSTIN M., 

AS THE APPLICATION OF SENATE BILL 10 TO JUSTIN 

VIOLATES HIS RIGHT TO DUE PROCESS AS 

GUARANTEED BY THE 14TH AMENDMENT TO THE 

UNITED STATES CONSTITUTION AND ARTICLE I, 

SECTION 16 OF THE OHIO CONSTITUTION. (A-7); (T.PP. 

5-6). 

Assignment of Error No. III 

THE RETROACTIVE APPLICATION OF SENATE BILL 10 

TO JUSTIN M. VIOLATES THE EX POST FACTO CLAUSE 

OF THE UNITED STATES CONSTITUTION AND THE 

RETROACTIVITY CLAUSE OF SECTION 28, ARTICLE II 

OF THE OHIO CONSTITUTION. (A-7); (T.PP. 2-6). 

Assignment of Error No. IV 

THE JUVENILE COURT ERRED WHEN IT APPLIED 

SENATE BILL 10 TO JUSTIN M., AS THE LAW VIOLATES 

HIS RIGHT TO EQUAL PROTECTION UNDER THE LAW 

IN VIOLATION OF THE FOURTEENTH AMENDMENT TO 

THE UNITED STATES CONSTITUTION; ARTICLE I, 

SECTION 2 OF THE OHIO CONSTITUTION. (A-7); (T.PP. 2-

6). 
Case No. 16-09-17 

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{¶9} Due to the nature of Messmer’s arguments, we elect to address 

assignments of error two and three together. 

Assignment of Error No. I 

{¶10} In his first assignment of error, Messmer argues that the juvenile 

court abused its discretion when it classified him as a Tier II sex offender. 

Specifically, he contends that the juvenile court mistakenly believed that the 

classification was offense-based and mandatory, when, in fact, it had the discretion 

to determine his classification. We disagree. 

{¶11} S.B. 10 was enacted in June 2007, with an effective date of January 

1, 2008, and amended the sexual offender classification system found in former 

R.C. 2950. In re Gant, 3d Dist. No. 1-08-11, 2008-Ohio-5198, ¶11, appeal 

accepted for review, 3/25/2009 Case Announcements, 2009-Ohio-1296. Under 

the prior classification system, the trial court determined whether the offender fell 

into one of three categories: (1) sexually oriented offender, (2) habitual sex 

offender, or (3) sexual predator. Former R.C. 2950.09; State v. Cook, 83 Ohio 

St.3d 404, 407, 1998-Ohio-291. In determining whether to classify an offender as 

a sexual predator, former R.C. 2950.09(B)(3) provided the trial court with 

numerous factors to consider in its determination. In re Smith, 3d Dist. No. 1-07-

58, 2008-Ohio-3234, ¶28, appeal accepted for review, 12/8/2008 Case 
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Announcements, 2008-Ohio-6166. Additionally, R.C. 2950.04 imposed 

registration requirements for sexual offenders. 

{¶12} In contrast, S.B. 10 requires the trial court to designate the offender 

as either a Tier I, II, or III sex offender. R.C. 2950.01; Gant, 2008-Ohio-5198, at 

¶15. The new classification system places a much greater limit on the discretion 

of the trial court to categorize the offender, as S.B. 10 requires the trial court to 

simply place the offender into one of the three tiers based on the offense. Id. A 

portion of the requirements for a Tier II classification are as follows: 

F) “Tier II sex offender/child-victim offender” means any of 

the following: 

(1) A sex offender who is convicted of, pleads guilty to, has 

been convicted of, or has pleaded guilty to any of the following 

sexually oriented offenses: 

* * * 

(c) A violation of division (A)(4) of section 2907.05 or of 

division (A)(1) or (2) of section 2907.323 of the Revised Code; 

R.C. 2950.01(F)(1)(c). Accordingly, the trial court has no discretion in 

designating the offender as a Tier I, II, or III sex offender; it must merely classify 

the offender according to the offense committed. See Smith, 2008-Ohio-3234, at 

¶31; Gant, 2008-Ohio-5198, at ¶15; Downing v. State, 3d Dist. No. 8-08-29, 2009-

Ohio-1834, ¶10. 
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{¶13} Here, Messmer was adjudicated a delinquent child due to his 

admission to gross sexual imposition in violation of R.C. 2907.05(A)(4). 

Accordingly, pursuant to R.C. 2950.01(F)(1)(c), the juvenile court was required to 

classify Messmer as a Tier II sex offender. Consequently, we find there to be no 

error in the juvenile court’s classification of Messmer as a Tier II sex offender. 

{¶14} Accordingly, we overrule Messmer’s first assignment of error. 

Assignments of Error Nos. II and III 

{¶15} In his second and third assignments of error, Messmer argues that 

the juvenile court’s application of S.B. 10 to designate him as a Tier II sex 

offender violated his due process rights under the United States and Ohio 

Constitutions, and violated the Ex Post Facto Clause of the United States 

Constitution and the Retroactivity Clause of the Ohio Constitution. Specifically, 

Messmer contends that S.B. 10’s elimination of the juvenile court’s discretion in 

designating sex offenders results in criminal sanctions for juvenile offenders and 

eliminates due process protections afforded by case-by-case designations. 

Additionally, Messmer also asserts that, due to S.B. 10’s application to offenses 

that occurred prior to its enactment, and due the General Assembly’s penal 

objective in promulgating the statute, S.B. 10 violates the Ex Post Facto Clause of 

the United States Constitution and the Retroactivity Clause of the Ohio 

Constitution. 
Case No. 16-09-17 

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{¶16} “An enactment of the General Assembly is presumed to be 

constitutional, and before a court may declare it unconstitutional it must appear 

beyond a reasonable doubt that the legislation and constitutional provisions are 

clearly incompatible.” State ex rel. Dickman v. Defenbacher (1955), 164 Ohio St. 

142, paragraph one of the syllabus. “That presumption of validity of such 

legislative enactment cannot be overcome unless it appear[s] that there is a clear 

conflict between the legislation in question and some particular provision or 

provisions of the Constitution.” Xenia v. Schmidt (1920), 101 Ohio St. 437, 

paragraph two of the syllabus. 

{¶17} A statute’s constitutionality can be challenged on its face or on the 

particular set of facts to which the statute has been applied. Harold v. Collier, 107 

Ohio St.3d 44, 2005-Ohio-5334, ¶37, citing Belden v. Union Cent. Life Ins. Co.

(1944), 143 Ohio St. 329, paragraph four of the syllabus. When a statute is 

challenged on its face, the challenger must demonstrate that no set of 

circumstances exist under which the statute would be valid. Id., citing United 

States v. Salerno (1987), 481 U.S. 739, 745. The fact that the statute could operate 

unconstitutionally under some given set of facts or circumstances is insufficient to 

render it wholly invalid. Id. “Conversely, when a statute is challenged as applied, 

the challenger must establish by clear and convincing evidence an existing set of 

facts that renders the statute invalid when applied to those facts.” Smith v. Jones, 
Case No. 16-09-17 

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175 Ohio App.3d 705, 2007-Ohio-6708, ¶14, citing Harold, 107 Ohio St.3d 44, at 

¶38. 

{¶18} Here, Messmer challenges the constitutionality of S.B. 10 as applied 

to his case. This Court has previously addressed the issues of whether the 

application of S.B. 10 violates a defendant’s due process rights under the Ohio and 

United States Constitutions, and whether it violates the Ex Post Facto Clause of 

the United States Constitution and the Retroactivity Clause of the Ohio 

Constitution, and has continually found there to be no such constitutional 

violations. See Smith, 2008-Ohio-3234; Gant, 2008-Ohio-5198; Downing, 2009-

Ohio-1834; Holcomb v. State, 3d Dist. Nos. 8-08-23, 8-08-24, 8-08-25, 8-08-26; 

2009-Ohio-782; In re Copeland, 3d Dist. No. 1-08-40, 2009-Ohio-190. 

Consequently, because this Court has found that S.B. 10 does not run afoul of 

these constitutional provisions, we are now bound by the principle of stare decisis 

to our prior decisions. See Copeland, 2009-Ohio-190, at ¶11. 

{¶19} Accordingly, we overrule Messmer’s second and third assignments 

of error. 

Assignment of Error No. IV 

{¶20} In his fourth assignment of error, Messmer argues that the 

application of S.B. 10 to his case results in a violation of his right to equal 

protection under the United States and Ohio Constitutions. Specifically, he 
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contends that S.B. 10’s penalty scheme based upon the offender’s age bears no 

rational relation to a legitimate government interest and, therefore, runs afoul of 

the United States and Ohio Constitutions. We disagree. 

{¶21} As set forth in our disposition of Messmer’s second and third 

assignments of error, all legislative enactments are presumed constitutional, and a 

challenge to the constitutionality of a statue can only prevail when the challenger 

demonstrates unconstitutionality beyond a reasonable doubt. State v. Lowe, 112 

Ohio St.3d 507, 2007-Ohio-606, ¶17, citing Klein v. Leis, 99 Ohio St.3d 537, 

2003-Ohio-4779, ¶4. Additionally, we note that Messmer challenges the 

constitutionality of S.B. 10 on its face and as applied to him. 

{¶22} In order to determine the constitutionality of a statute under the 

equal protection clause, we must first decide whether a fundamental right or 

suspect class is involved. Conley v. Shearer, 64 Ohio St.3d 284, 289, 1992-Ohio133. ‘“A statutory classification which involves neither a suspect class nor a 

fundamental right does not violate the Equal Protection Clause of the Ohio or 

United States Constitutions [sic] if it bears a rational relationship to a legitimate 

governmental interest.’” McCrone v. Bank One Corp., 107 Ohio St.3d 272, 2005-

Ohio-6505, ¶8, quoting Menefee v. Queen City Metro (1990), 49 Ohio St.3d 27, 

29. Under rational basis review, the judgment of the General Assembly is granted 

substantial deference. Eppley v. Tri-Valley Local School Dist. Bd. of Edn., 122 
Case No. 16-09-17 

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Ohio St.3d 56, 2009-Ohio-1970, ¶15, citing State v. Williams, 88 Ohio St.3d 513, 

531, 2000-Ohio-428. Furthermore, rational basis review only requires a 

reasonable justification for the classification, even if the classifications are 

imprecise. Groch v. Gen. Motors Corp, 117 Ohio St.3d 192, 2008-Ohio-546, ¶82. 

{¶23} Here, Messmer asserts a violation of equal protection on the basis 

that S.B. 10 impermissibly classifies sexual offenders according to age. However, 

the suspect classes have been traditionally defined as race, sex, religion, and 

national origin, Adamsky v. Buckeye Local School Dist., 73 Ohio St.3d 360, 362, 

1995-Ohio-298, with age being excluded. Cleveland v. Trzebuckowski, 85 Ohio 

St.3d 524, 1999-Ohio-285, fn2. Accordingly, we will analyze whether S.B. 10’s 

classification scheme bears a rational relationship to a legitimate government 

interest. 

{¶24} Under R.C. 2152.83(A)(1), a juvenile court is required to classify a 

juvenile as a sex offender where three conditions are met. One of those conditions 

is that the juvenile was sixteen or seventeen years of age at the time of committing 

the offense. However, pursuant to R.C. 2152.83(B)(1), the juvenile court has the 

discretion to conduct a hearing to determine if the juvenile should be classified as 

a sex offender when three conditions are met, one of which is that the juvenile was 

fourteen or fifteen years of age at the time of committing the offense. 

Accordingly, whether the juvenile court has discretion to or is required to classify 
Case No. 16-09-17 

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a juvenile as a sex offender is partly based upon the age of the juvenile at the time 

of committing the offense. 

{¶25} The General Assembly’s reasoning behind the promulgation of sex 

offender classifications and punishments is set forth in R.C. 2950.02, which 

provides, in pertinent part: 

If the public is provided adequate notice and information about 

offenders and delinquent children who commit sexually oriented 

offenses or who commit child-victim oriented offenses, members 

of the public and communities can develop constructive plans to 

prepare themselves and their children for the offender’s or 

delinquent child’s release from imprisonment, a prison term, or 

other confinement or detention. * * * 

* * * 

Sex offenders and child-victim offenders pose a risk of engaging 

in further sexually abusive behavior even after being released 

from imprisonment, a prison term, or other confinement or 

detention, and protection of members of the public from sex 

offenders and child-victim offenders is a paramount 

governmental interest. 

R.C. 2950.02(A)(1),(2). 

{¶26} Accordingly, if the purpose of sex offender classification is to notify 

and protect the public due to the likelihood of recidivism among sex offenders, it 

is likely the General Assembly concluded that the lower the age of the offender, 

the reduced likelihood of recidivism, thereby granting the juvenile court discretion 

in determining whether a sex offender classification is needed when the offender is 
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younger. Consequently, we find that this age classification bears a rational 

relationship to a legitimate government interest. 

{¶27} Accordingly, we overrule Messmer’s fourth assignment of error. 

{¶28} Having found no error prejudicial to the appellant herein, in the 

particulars assigned and argued, we affirm the judgment of the trial court. 

Judgment Affirmed 

WILLAMOWSKI, P.J. and PRESTON, J., concur. 

/jlr