[Cite as State v. Misch, 2021-Ohio-756.]

IN THE COURT OF APPEALS OF OHIO 

SIXTH APPELLATE DISTRICT 

LUCAS COUNTY 

State of Ohio Court of Appeals No. L-20-1094 

 

 Appellee Trial Court No. CR0199306298 

v. 

Eric Misch DECISION AND JUDGMENT

Appellant Decided: March 12, 2021 

* * * * * 

 Julia R. Bates, Lucas County Prosecuting Attorney, and 

 Evy M. Jarrett, Assistant Prosecuting Attorney, for appellee. 

 Timothy Young, Ohio Public Defender, Joanna Sanchez and 

 Katherine Sato, Assistant Public Defenders, for appellant. 

* * * * * 

PIETRYKOWSKI, J. 

{¶ 1} This case is before the court on appeal by appellant, Eric Misch, from the 

April 28, 2020 judgment of the Lucas County Court of Common Pleas, denying 

appellant’s motion for leave to be excused from duty to enroll in the violent offender 

database. For the reasons that follow, we affirm the judgment of the trial court. 
2.

{¶ 2} Appellant sets forth the following two assignments of error: 

I. Ohio’s violent offender registry is punitive and not remedial. As 

a result, the trial court erred by retroactively applying the statute to Mr. 

Misch. April 28, 2020 Judgment Entry on Defendant’s Motion for Leave to 

be Excused from Duty to Enroll in the Violent Offender Database; Ohio 

Constitution, Article II, Section 28. 

II. The trial court erred when it denied Mr. Misch’s motion to be 

excused from enrolling in the violent offender database. April 28, 2020 

Judgment Entry on Defendant’s Motion for Leave to be Excused from Duty 

to Enroll in the Violent Offender Database; R.C. 2903.41, et. seq. 

Procedural History 

{¶ 3} On July 2, 1993, appellant was indicted on charges of aggravated murder in 

violation of R.C. 2903.01(B), with an aggravating circumstance in violation of R.C. 

2929.04(A)(7) and 2941.14, as well as a charge of aggravated robbery in violation of 

R.C. 2911.01(A)(2). He was convicted after a jury trial of both charges, but he was 

acquitted of the specification. He was sentenced to 20 years to life for the aggravated 

murder conviction, to be served concurrently with 10-25 years for the aggravated robbery 

conviction. This court affirmed the convictions in State v. Misch, 101 Ohio App.3d 640, 

656 N.E.2d 381 (6th Dist.1995). 

{¶ 4} Appellant, who was released from prison on April 23, 2020, moved the 

court: (1) for postconviction DNA testing; (2) for leave to file a delayed motion for a 
3.

new trial; and (3) to be excused from his duties to report as a violent offender. The 

motion for leave to file a delayed motion for a new trial remains decisional. The trial 

court granted the petition for postconviction DNA testing and denied the motion to be 

excused from reporting as a violent offender. 

{¶ 5} Appellant now seeks review of the denial of his motion to be excused from 

reporting. 

Facts

{¶ 6} On August 4, 1992, the body of Vernon Huggins, an African American man, 

was discovered in Wilson Park, in Toledo. A crime stopper call caused police to 

interview appellant, who was then 16 years old. Although he initially denied any 

knowledge of the murder, detectives told him that two members of his gang had linked 

him to the murder, and he admitted his involvement in the crime. Officers drove him to 

the park where the body was discovered, with appellant directing them as to the route the 

gang took the night of the murder and pointing out areas relevant to the attack on 

Huggins. 

{¶ 7} Officers then took appellant back to the station, where he gave a recorded 

statement admitting that he had been with several members of the Bishops gang on the 

night of the murder. He stated that the group had been to a party at the house of someone 

named Lisa, but that they left and, after meeting up with two more gang members, 

walked to Woodward High School and then on to Wilson Park. Once there, they saw a 

young African American male who appellant described as having hair that “faded up” 
4.

and had “poofy curls on top.” One of the gang members said, “Let’s jack this dude,” 

meaning that they would rob the man. Appellant said his role was to approach the man 

and ask for a cigarette or for the time, with the purpose of distracting him and slowing 

him down. When appellant did so, the other gang members attacked the man, kicking 

and beating him for about two minutes. The gang then returned to Lisa’s house at about 

1:30 a.m. At the house, a girl named Michelle asked one of the gang members what they 

had done, because two of the gang members had blood stains and spatters on their pants. 

{¶ 8} At trial, investigating officers testified that the victim’s body was found in 

grass near a storage building and a group of trash barrels. One officer described the 

victim’s hair as being built up and higher on the top. 

{¶ 9} Another witness, Michelle Parkhurst, testified that she was a member of the 

Bishops and had been present at another party at Lisa’s house—the so-called “party 

house”—on the night before the murder. She remembered that, on the night of the 

murder, appellant was at the house and, further, was among the gang members when they 

returned to the house after midnight. She said that the gang members were celebrating 

and “energetic, happy like they really achieved something.” One member, “C.J.,” had 

reddish brown spots on his arms, hands, and clothing that had not been there when he left 

the house. Another member, Louie, had spots on his hands and stains on his knees and a 

black t-shirt that looked wet. Louie said “we fucked up a n*****,” and “we kicked him 

as we bashed his fucking head in.” Appellant actively participated in the celebration 

while they discussed the beating, and he never denied that the incident occurred. 
5.

{¶ 10} John Urbina founded and led the Bishops. He testified that the Bishops 

regularly went out to “do jack moves” on black people. He also testified that appellant 

and two other gang members came to his house in the early morning hours, talking about 

a “jack move” on a n*****,” and about “who hit him and who kicked him and who * * * 

tore his pocket off, who was doing the most fists, who was doing this and that * * *.” 

Urbina said that they talked about how they kept beating the victim, and appellant 

described how he and another gang member had asked the victim for a cigarette and for 

the time, and that as he reached to check his watch, the gang hit him, beat him, ripped off 

his pocket and took his wallet. 

{¶ 11} Witness Rosemary Knell provided police detectives with a wooden club 

that had belonged to Joseph Rickard, who was another member of the Bishops gang. She 

received the club sometime between June and October of 1992, and she kept it until 

turning it over to police on February 3, 1993. Michelle Parkhurst and John Urbina 

identified the club as a weapon that looked like those carried by members of the Bishops. 

{¶ 12} A deputy coroner testified that the victim’s injuries were caused by a 

tremendous force, and that they were similar to injuries sustained by a person hit by the 

type of high velocity impact that is found in train or auto accidents, as well as in beatings. 

She further testified that the victim’s injuries were consistent with being hit by the 

wooden club that had been entered into evidence, and that blood spatters that were found 

on the wall of the storage building and on the garbage cans located near the body were 

consistent with the victim being hit by a club. Finally, a forensic anthropologist testified 
6.

that the club that was given to police by Knell was consistent with the injuries inflicted 

on the victim’s skull. The deputy coroner confirmed that the victim died minutes after 

being hit, as the result of craniocerebral injuries that were sustained in the beating. 

{¶ 13} In appellant’s defense, several witnesses, including appellant’s girlfriend, 

testified that appellant did not dislike African American people. His girlfriend further 

testified that at the time of the murder, appellant was spending most of his time with her, 

that her aunt is biracial, and that she never heard him use the word “n*****.” Appellant 

himself stated that he became a member of the Bishops the month before the murder, but 

shortly after that met his girlfriend and did not spend much time with the gang. He 

denied being at Lisa’s house or in the park on the night of the murder, and he denied any 

involvement in the murder. He said that he recanted his original statement because it was 

not true, and that detectives had told him that if he did not say he was there, they were 

going to lock him up until he was 50. 

Analysis 

{¶ 14} Appellant asserts in his first assignment of error that application of the R.C. 

2943.01 violent offender registry (VOD) to appellant, based upon his more than 26-yearold conviction, was in violation of the Ohio Constitution’s prohibition against 

retroactivity. This court, in State v. Lamb, 6th Dist. Lucas No. L-19-1177, 2021-Ohio-87, 

recently addressed the propriety of retroactively applying Ohio’s VOD statute, and, 

reasoning as follows, ultimately concluded that the VOD statute is remedial in nature 

and, therefore, is constitutional: 
7.

Currently pending before the Ohio Supreme Court is a certified 

conflict between the Courts of Appeals for the Twelfth and Fifth Districts 

on the issue whether the VOD statutes, when applied to an offense that 

occurred before the statutes’ March 20, 2019 effective date, violate the 

prohibition against retroactive statutes contained in Article II, Section 28, 

of the Ohio Constitution. See State v. Hubbard, 159 Ohio St.3d 1427, 

2020-Ohio-3473, 148 N.E.3d 568 (Table); State v. Jarvis, 159 Ohio St.3d 

1427, 2020-Ohio-3473, 148 N.E.3d 568 (Table). See also State v. Rike, 1st 

Dist. Hamilton No. C-190401, 2020-Ohio-4690 (finding no retroactivityclause violation); State v. Jackson, 10th Dist. Franklin No. 19AP-393, 

2020-Ohio-4115 (declining to decide retroactivity-clause challenge upon 

determining that the case was not ripe for decision); State v. Morgan, 2020-

Ohio-3955, 156 N.E.3d 989 (9th Dist.) (finding no retroactivity-clause 

violation). State v. Klein, 1st Dist. No. C-190619, 2020-Ohio-6948, ¶ 16. 

Until the Supreme Court resolves this conflict, we are inclined to 

follow the position of a majority of our fellow appellate districts and find 

that the VOD statute before us as applied is remedial in nature and therefore 

find it to be constitutional, utilizing the same logic employed by the court 

in Hubbard: 

“Given the many differences between the sex-offender registration 

statutes and the violent-offender enrollment statutes, we find that the 
8.

violent-offender enrollment requirements are not so punitive that they 

impose a new burden in the constitutional sense, as contemplated 

in Williams. Rather, we find that the violent-offender enrollment 

requirements are more akin to the arson-offender registration requirements 

set forth in R.C. 2909.13, 2909.14, and 2909.15, which the First District 

found were remedial in nature. See Caldwell, 2014-Ohio-3566, 18 N.E.3d 

467 at ¶ 33-35. Accordingly, as appellant had no expectation of finality 

with regard to any duties that may or may not have attached following his 

conviction for murder, he does not have a substantive right in this regard. 

See id. at ¶ 35; Cook, 83 Ohio St.3d at 414, 700 N.E.2d 570. The violentoffender enrollment statutes are remedial in nature, and the General 

Assembly could retroactively impose Sierah’s Law without running afoul 

of Article II, Section 28 of the Ohio Constitution. State v. Hubbard, 2020-

Ohio-856, ¶ 37, 146 N.E.3d 593, 604, motion to certify allowed, 2020-

Ohio-3473, ¶ 37, 159 Ohio St. 3d 1427, 148 N.E.3d 568, and appeal 

allowed, 2020-Ohio-3473, ¶ 37, 159 Ohio St. 3d 1427, 148 N.E.3d

569. Hubbard, at Paragraph 37.” 

Id. at ¶ 57-58. Employing the identical logic that was used in both Lamb and in 

Hubbard, we find that the VOD statute, as applied to appellant in this case, is remedial in 

nature and, therefore, is constitutional. Accordingly, we find appellant’s first assignment 

of error not well-taken. 
9.

{¶ 15} Appellant argues in his second assignment of error that the trial court erred 

in denying his motion to be excused from enrolling in Ohio’s violent offender database 

solely on the basis that appellant was convicted of the charge of aggravated murder. 

{¶ 16} When the Ohio General Assembly enacted Sierah’s Law, it created a 

presumptive duty of enrollment for offenders convicted of specific violent offenses 

including, as applicable here, aggravated murder. R.C. 2903.41(A)(1)(a)-(b). The 

presumptive duty to enroll, however, can be overcome if the sentencing court finds, upon 

a defendant’s motion, that he was not the principal offender. R.C. 2903.42(A)(4)(a). If 

the presumption is overcome, the court shall determine whether, notwithstanding the 

rebuttal of the presumption, the defendant must nonetheless enroll. Id. To guide its 

analysis, the court must weigh the following factors: 

(i) Whether the offender has any convictions for any offense of

violence, prior to the offense at issue that classifies the person a violent 

offender, and whether those prior convictions, if any, indicate that the 

offender has a propensity for violence; 

(ii) The results of a risk assessment of the offender conducted

through use of the single validated risk assessment tool established under 

section 5120.114 of the Revised Code; 

(iii) The degree of culpability or involvement of the offender in the 

offense at issue that classifies the person a violent offender;

(iv) The public interest and safety. 
10. 

Id. Appellant asserts that although the trial court correctly identified the framework 

established by the General Assembly, it ultimately ignored that framework. 

{¶ 17} We note at the outset of our analysis that neither the statute itself nor Ohio 

appellate courts have identified the standard of review applicable to a denial of a motion 

to be excused from enrolling in the violent offender database. Given the absence of 

authority in this area, we conclude that the court should review the matter for abuse of 

discretion, consistent with the review that has been afforded in appeals from denials of 

other remedies intended to alleviate the collateral consequences of a criminal conviction. 

See, e.g., In re Buzzell, 6th Dist. Lucas No. L-20-1012, 2020-Ohio-4242, ¶ 11 (petition

for certificate of employment qualification pursuant to R.C. 2953.25); In re Chrosniak, 

2017-Ohio-7408, 96 N.E.3d 1083, ¶ 14 (8th Dist.) (application for relief from disability 

pursuant to R.C. 2923.14); and State v. Haas, 6th Dist. Lucas No. L-04-1315, 2005-Ohio4350, ¶ 19 (expungement pursuant to R.C. 2953.32). 

{¶ 18} The abuse of discretion standard recognizes the court’s “inherent authority 

and wide discretion in exercising its duty to administer proceedings.” State v. 

Cunningham, 113 Ohio St.3d 108, 2007-Ohio-1245, 863 N.E.2d 120, ¶ 25 (citations 

omitted). A discretionary decision “will not be disturbed absent a showing that the court 

abused that discretion,” which requires a showing of “an unreasonable, arbitrary, or 

unconscionable use of discretion,” or which involves a course of action “that no 

conscientious judge, acting intelligently, could honestly have taken.” Id. (citations 

omitted); and State ex rel. Wilms v. Blake, 144 Ohio St. 619, 624, 60 N.E.2d 308 (1945). 
11. 

{¶ 19} With this standard of review in mind, we consider the lower court’s 

analysis and application of the Ohio violent offender registry law. First, the trial court 

properly determined, by a preponderance of the evidence, that appellant was not a 

principal offender. That is, there was no evidence to suggest that appellant physically 

participated in Huggins’ beating. Instead, the evidence revealed that appellant’s role was 

to set up the victim for the beating that was subsequently inflicted by the principal 

offenders. Because appellant was not a principal offender, the trial court properly 

concluded that the presumption that appellant must enroll in the violent offender database 

was rebutted. See R.C. 2903.42(A)(4)(a). 

{¶ 20} Next, the court considered the factors set forth at R.C 2903.42(A)(4)(a)(i)-

(iv). The court concluded that the first two factors “merit[ed] against * * * compelling 

[appellant] to register in the VOD.” First, the evidence was undisputed that appellant had 

no prior convictions. See R.C. 2903.42(A)(4)(a)(i). And second, appellant’s most recent

risk score on the Ohio Risk Assessment System Reentry Tool (ORAS-RT) was 9, which 

falls in the low risk category. See R.C. 2903.42(A)(4)(a)(ii). 

{¶ 21} Regarding the third factor, appellant’s culpability in the offense, the trial 

court observed that although appellant “did not physically take part in the beating which 

ultimately caused the death of Mr. Huggins,” “he nevertheless set up the opportunity for 

his cohorts to attack Mr. Huggins, and his culpability for such actions is certainly 

reflected in his convictions for aggravated murder and aggravated robbery.” The court 

went on to state that “[w]hile [appellant] may contend that he was ‘minimally involved,’ 
12. 

in Mr. Huggins’ murder, the fact remains that a jury found his culpability equaled that 

which was required for a conviction of aggravated murder[;] [s]uch considerations are 

weighed heavily by the court.” See R.C. 2903.42(A)(4)(a)(iii). 

{¶ 22} Lastly, the court, upon considering the fourth factor involving the public 

interest and safety, specifically recognized that appellant had “furthered his education 

while incarcerated by obtaining a high school diploma equivalent and an associate degree 

in business administration from the University of Findlay.” In addition, the court stated 

that appellant appeared “to have significant vocational training and work experience such 

that he appears to be employable upon his release.” Finally, the court took notice of a 

statement by appellant that “much of [appellant’s] family (including siblings, his father, 

and his stepmother) continue[d] to reside in Toledo and * * * remained in regular contact 

with him.” See R.C. 2903.42(A)(4)(a)(iv). 

{¶ 23} The court ended its analysis with the following observations and 

conclusions: 

[A]s stated previously, the jury did find, based upon all of the evidence and 

arguments, that [appellant] was guilty of aggravated murder. Ultimately, 

he was found to be sufficiently culpable for committing the highest offense 

in our criminal justice system, and this fact is inescapable for the Court. 

The purpose and intent of the General Assembly in passing R.C. 2903.41-

2903.44 was for the protection of the community and law enforcement who 

come in contact with individuals convicted of violent offenses. Therefore, 
13. 

despite some factors meriting in Defendant’s favor, the Court still finds his 

registration in the VOD to be necessary. Defendant’s motion is therefore 

not well-taken and denied. 

{¶ 24} Review of the foregoing reveals that the trial court scrupulously considered 

and adhered to the language of the statute in this case. The court properly reasoned that 

Sierah’s Law “was for protection of the community and law enforcement who come in 

contact with individuals convicted of violent offenses.” Although the court recognized 

that certain factors weighed in favor of excusing the duty to register, the court obviously 

viewed those factors as outweighed by the concern for public safety. The trial court’s 

conclusion that the interest of public safety warranted a registry period does not render 

the court’s decision an abuse of discretion, nor does it suggest that the court “recognized, 

then ultimately ignored” the statutory requirements. 

{¶ 25} In Cunningham, supra, the Supreme Court of Ohio observed that the trial 

court did not abuse its discretion when it “did not act arbitrarily or otherwise ignore the 

language of the statute.” Cunningham, 113 Ohio St.3d 108, 2007-Ohio-1245, 863 N.E.2d 

120, at ¶ 26. We find that the same is true of the trial court in this case. 

{¶ 26} Arguing against this conclusion, appellant asserts that the trial court based 

its decision entirely on the fact that appellant was convicted of aggravated murder, and, in 

so doing, “created a rule that is both inconsistent with the General Assembly’s clear 

intent” and, further, “deprives the court of its discretion,” to the extent that it requires that 

“any person convicted of aggravated murder must enroll in the violent offender 
14. 

database.” We disagree with appellant’s interpretation of the trial court’s analysis. The 

trial court, in rendering its decision, did not simply rely on the fact of appellant’s 

conviction for aggravated murder. Instead, the court recognized that the conviction—not 

just for aggravated murder, but also for aggravated robbery—came not just from a plea, 

for example, but from a full trial, where evidence and arguments were presented for both 

sides. In addition, a review of the facts in this case, as gleaned from the evidence, makes 

clear that the crime for which appellant was convicted was extremely brutal and, further, 

quite possibly was racially motivated. 

{¶ 27} For all of the foregoing reasons, appellant’s second assignment of error is 

found not well-taken and is denied. Accordingly, the judgment of the Lucas County 

Court of Common Pleas is hereby affirmed. Appellant is ordered to pay the costs of this 

appeal pursuant to App.R. 24. 

Judgment affirmed. 

A certified copy of this entry shall constitute the mandate pursuant to App.R. 27. 

See also 6th Dist.Loc.App.R. 4. 

 
15. 

 State v. Misch 

 C.A. No. L-20-1094 

Mark L. Pietrykowski, J. _______________________________ 

JUDGE 

Thomas J. Osowik, J. 

_______________________________ 

Myron C. Duhart, J. JUDGE 

CONCUR. 

_______________________________ 

JUDGE 

 

 

This decision is subject to further editing by the Supreme Court of 

Ohio’s Reporter of Decisions. Parties interested in viewing the final reported 

version are advised to visit the Ohio Supreme Court’s web site at: 

http://www.supremecourt.ohio.gov/ROD/docs/.