[Cite as State v. Greenlee, 2011-Ohio-3692.]

 Court of Appeals of Ohio

 EIGHTH APPELLATE DISTRICT 

 COUNTY OF CUYAHOGA

 JOURNAL ENTRY AND OPINION 

 No. 96002 

 

STATE OF OHIO 

PLAINTIFF-APPELLANT 

 vs. 

ROBERT GREENLEE 

DEFENDANT-APPELLEE 

JUDGMENT: 

AFFIRMED 

Criminal Appeal from the 

Cuyahoga County Court of Common Pleas 

Case No. CR-537180 

BEFORE: Sweeney, P.J., Cooney, J., and S. Gallagher, J. 
2

RELEASED AND JOURNALIZED: July 28, 2011 

ATTORNEYS FOR APPELLANT

William D. Mason, Esq. 

Cuyahoga County Prosecutor 

By: Matthew Waters, Esq. 

Assistant County Prosecutor 

8

th Floor, Justice Center 

1200 Ontario Street 

Cleveland, Ohio 44113 

ATTORNEY FOR APPELLEE

Jeffrey P. Hastings, Esq. 

50 Public Square, Suite 3300 

Cleveland, Ohio 44113-2289 

JAMES J. SWEENEY, P.J.: 

{¶ 1} The state of Ohio appeals the trial court’s order dismissing the 

indictment against defendant-appellee, Robert Greenlee (“defendant”) 

pursuant to Crim.R. 12(C)(1) and (2). For the reasons that follow, we affirm. 
3

{¶ 2} Defendant was charged with one count of failure to register in 

violation of R.C. 2950.06(F) and failure to provide notice of change of address 

in violation of R.C. 2950.05(E)(1), which are felonies of the fourth degree. 

{¶ 3} The felony charges were predicated on defendant’s juvenile 

delinquency adjudication in Iowa for the crime of assault pursuant to I.C.A. 

§708.1(1) and 708.2(4). The state maintains that the Iowa adjudication was 

the substantial equivalent of a gross sexual imposition conviction under Ohio 

law and thus a sexually oriented offense. Defendant maintains it was not. 

{¶ 4} The trial court determined that defendant’s adjudication for 

assault in Iowa was not substantially equivalent to a “sexually oriented 

offense” as defined under Ohio law. The state’s appeal presents two 

assignments of error that both challenge the court’s decision to dismiss the 

indictment and are addressed together. 

{¶ 5} “I: The trial court erred in granting defendant-appellee’s motion 

to dismiss because summary judgment is not permitted in criminal cases. 

{¶ 6} “II: The trial court erred in granting defendant-appellee’s motion 

to dismiss because the underlying crime is a sexually oriented offense subject 

to reporting requirements.” 

{¶ 7} “A pretrial motion must not involve a determination of the 

sufficiency of the evidence to support the indictment. If the indictment is 
4

valid on its face, a motion to dismiss should not be granted.” State v. Preztak, 

181 Ohio App.3d 106, 2009-Ohio-62, 907 N.E.2d 1254, ¶ 12, citing State v. 

Eppinger, 162 Ohio App.3d 795, 2005-Ohio-4155, 835 N.E.2d 746. This court 

recently noted “that a court may consider material outside the face of the 

indictment if the ‘motion did not embrace what would be the general issue at 

trial.’” State v. Ortega-Martinez, Cuyahoga App. No. 95656, 2011-Ohio-2540, 

¶15, quoting, State v. Brady, 119 Ohio St.3d 375, 2008-Ohio-4493, 894 N.E.2d 

671, ¶18; Crim.R. 12(C). “The court may consider briefs, affidavits, testimony, 

and other exhibits in deciding the motion. However, a court may not 

determine a pretrial motion to dismiss if it requires the trial court to also 

determine the general issue for trial.” 

{¶ 8} In Ortega-Martinez, this Court determined that the trial court 

properly dismissed an indictment for failure to register that was predicated 

upon an unconstitutional reclassification of him under the Adam Walsh Act 

and, therefore, “did not require a determination of the factual issue for trial.” 

Id. at ¶16. Likewise, the trial court in this case was not determining the 

factual issue for trial, that is whether or not defendant failed to verify his 

address or failed to provide notice of his change of address. Similar to 

Ortega-Martinez, the trial court was determining whether the indictment was 
5

valid on its face, i.e., whether the underlying offense actually constituted a 

sexually oriented offense as required to state an indictable offense. 

{¶ 9} This court has held that an unlawful reclassification under Ohio’s 

AWA cannot serve as the predicate for the crime of failure to verify. State v. Smith, 

Cuyahoga App. No. 92550, 2010-Ohio-2880, ¶29; State v. Page, Cuyahoga App. No. 

94369, 2011-Ohio-83. 

{¶ 10} Even if defendant’s adjudication in Iowa is substantially 

equivalent to some sexually oriented offense as defined by Ohio law, the 

dismissal of the indictment was proper because it was predicated on an 

unlawful reclassification under the AWA. Defendant contends the 

dismissal of the indictment was also proper pursuant to State v. Smith, 

Cuyahoga App. No. 92550, 2010-Ohio-2880. To the extent that defendant was 

reclassified under the provisions of Ohio’s Adam Walsh Act as prohibited by 

State v. Bodyke, 126 Ohio St.3d 266, 2010-Ohio-2424, 933 N.E.2d 753, the 

reclassification cannot serve as a predicate for the indictment. Id. at ¶29. 

This court has held that it is improper to reclassify a person under Ohio’s 

Adam Walsh Act notwithstanding that the sexually oriented conviction 

occurred out of state. See Majewski v. State, Cuyahoga App. Nos. 92372 and 

92400, 2010-Ohio-3178, appeal not allowed, 127 Ohio St.3d 1462, 

2010-Ohio-6008, 938 N.E.2d 364 (Table). 
6

{¶ 11} The assignments of error are overruled. 

a. Judgment affirmed. 

It is ordered that appellee recover of appellant costs herein taxed. 

The Court finds there were reasonable grounds for this appeal. 

It is ordered that a special mandate issue out of this Court directing the 

Common Pleas Court to carry this judgment into execution. 

A certified copy of this entry shall constitute the mandate pursuant to 

Rule 27 of the Rules of Appellate Procedure.

 

JAMES J. SWEENEY, PRESIDING JUDGE 

COLLEEN CONWAY COONEY, J., and 

SEAN C. GALLAGHER, J., CONCUR