[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 Misc h, from the April 28, 2020 judgment of the Lucas County Court of Common Ple as, 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 remedi al. As a result, the trial court erred by retroactively applying the s tatute 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 fr om Duty to Enroll in the Violent Offender Database; R.C. 2903.41, et. s eq. Procedural History {¶ 3} On July 2, 1993, appellant was indicted on charges of aggravate d 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 ro bbery in violation of R.C. 2911.01(A)(2). He was convicted after a jury trial of bot h charges, but he was acquitted of the specification. He was sentenced to 20 years t o life for the aggravated murder conviction, to be served concurrently with 10-25 years f or 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, move d the court: (1) for postconviction DNA testing; (2) for leave to fi le a delayed motion for a3. 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 remai ns decisional. The trial court granted the petition for postconviction DNA testing and d enied the motion to be excused from reporting as a violent offender. {¶ 5} Appellant now seeks review of the denial of his motion to be ex cused from reporting.

Facts {¶ 6} On August 4, 1992, the body of Vernon Huggins, an African Ameri can 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 in itially denied any knowledge of the murder, detectives told him that two members o f 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 directin g them as to the route the gang took the night of the murder and pointing out areas releva nt 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 th e Bishops gang on the night of the murder. He stated that the group had been to a pa rty at the house of someone named Lisa, but that they left and, after meeting up with two m ore gang members, walked to Woodward High School and then on to Wilson Park. Onc e there, they saw a young African American male who appellant described as having h air that “faded up”4. and had “poofy curls on top.” One of the gang members said, “L et’s jack this dude,” meaning that they would rob the man. Appellant said his role w as to approach the man and ask for a cigarette or for the time, with the purpose of di stracting him and slowing him down. When appellant did so, the other gang members attack ed 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 bo dy was found in grass near a storage building and a group of trash barrels. On e 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 m ember of the Bishops and had been present at another party at Lisa’s house—t he 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 m embers were celebrating and “energetic, happy like they really achieved something.” On e member, “C.J.,” had reddish brown spots on his arms, hands, and clothing that had n ot been there when he left the house. Another member, Louie, had spots on his hands and s tains 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 particip ated 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 morni ng hours, talking about a “jack move” on a n*****,” and about “who hit him and who kick ed him and who * * * tore his pocket off, who was doing the most fists, who was doin g this and that * * *.” Urbina said that they talked about how they kept beating the vi ctim, and appellant described how he and another gang member had asked the victim f or a cigarette and for the time, and that as he reached to check his watch, the gang h it 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, an d she kept it until turning it over to police on February 3, 1993. Michelle Parkhu rst 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 caus ed by a tremendous force, and that they were similar to injuries sustai ned by a person hit by the type of high velocity impact that is found in train or auto acc idents, as well as in beatings. She further testified that the victim’s injuries were consisten t 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 loc ated near the body were consistent with the victim being hit by a club. Finally, a for ensic anthropologist testified6. 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 v ictim died minutes after being hit, as the result of craniocerebral injuries that were s ustained in the beating. {¶ 13} In appellant’s defense, several witnesses, including appellant’ s girlfriend, testified that appellant did not dislike African American peopl e. His girlfriend further testified that at the time of the murder, appellant was spendin g 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 ti me 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 origin al statement because it was not true, and that detectives had told him that if he did not s ay 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 applica tion of the R.C. 2943.01 violent offender registry (VOD) to appellant, based upo n his more than 26-yearold conviction, was in violation of the Ohio Constitution’s pro hibition 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 Fift h Districts on the issue whether the VOD statutes, when applied to an offen se that occurred before the statutes’ March 20, 2019 effective date, vi olate the prohibition against retroactive statutes contained in Article I I, 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 retroac tivityclause violation); State v. Jackson , 10th Dist. Franklin No. 19AP-393, 2020-Ohio-4115 (declining to decide retroactivity-clause challe nge 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 distr icts 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 registrati on statutes and the violent-offender enrollment statutes, we find that the8. violent-offender enrollment requirements are not so punitive th at they impose a new burden in the constitutional sense, as contemplate d

in Williams. Rather, we find that the violent-offender enrollment requirements are more akin to the arson-offender registration r equirements set forth in R.C. 2909.13, 2909.14, and 2909.15, which the Firs t 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 o f finality with regard to any duties that may or may not have attached fol lowing 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 Ge neral Assembly could retroactively impose Sierah’s Law without runnin g 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 appe al 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 bo th 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 tri al court erred in denying his motion to be excused from enrolling in Ohio’s vi olent 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 speci fic 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 sen tencing 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 enr oll. 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 per son 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 establ ished 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 ident ified 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 applica ble 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 revie w the matter for abuse of discretion, consistent with the review that has been afforded i n appeals from denials of other remedies intended to alleviate the collateral consequence s 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. 29 53.25); 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 “inhere nt authority and wide discretion in exercising its duty to administer procee dings.” State v. Cunningham , 113 Ohio St.3d 108, 2007-Ohio-1245, 863 N.E.2d 120, ¶ 25 (cit ations omitted). A discretionary decision “will not be disturbed abse nt a showing that the court abused that discretion,” which requires a showing of “an unreas onable, arbitrary, or unconscionable use of discretion,” or which involves a course o f 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 cou rt’s analysis and application of the Ohio violent offender registry law. First, the trial court properly determined, by a preponderance of the evidence, that a ppellant was not a principal offender. That is, there was no evidence to suggest that appellant physically participated in Huggins’ beating. Instead, the evidence reveal ed that appellant’s role was to set up the victim for the beating that was subsequently infl icted by the principal offenders. Because appellant was not a principal offender, the trial court properly concluded that the presumption that appellant must enroll in th e 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 u ndisputed 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 (ORA S-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 offe nse, 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 s et 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 aggravat ed 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 equivalen t and an associate degree in business administration from the University of Findlay.” In addition, the court stated that appellant appeared “to have significant vocational trainin g 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 (incl uding siblings, his father, and his stepmother) continue[d] to reside in Toledo and * * * r emained in regular contact

with him.” See R.C. 2903.42(A)(4)(a)(iv). {¶ 23} The court ended its analysis with the following observations an d

conclusions: [A]s stated previously, the jury did find, based upon all of th e evidence and arguments, that [appellant] was guilty of aggravated murder. U ltimately, he was found to be sufficiently culpable for committing the hig hest offense in our criminal justice system, and this fact is inescapable fo r 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 enforce ment who

come in contact with individuals convicted of violent offenses. Therefore,13. despite some factors meriting in Defendant’s favor, the Court s till 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 scrupulous ly considered and adhered to the language of the statute in this case. The c ourt properly reasoned that Sierah’s Law “was for protection of the community and law enfor cement who come in

contact with individuals convicted of violent offenses.” Altho ugh the court recognized that certain factors weighed in favor of excusing the duty to r egister, the court obviously viewed those factors as outweighed by the concern for public sa fety. The trial court’s conclusion that the interest of public safety warranted a regis try period does not render the court’s decision an abuse of discretion, nor does it sugges t 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 arbitra rily 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 tri al 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 Ge neral Assembly’s clear intent” and, further, “deprives the court of its discretion,” t o the extent that it requires that “any person convicted of aggravated murder must enroll in the v iolent offender14. 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 recognize d that the conviction—not just for aggravated murder, but also for aggravated robbery—cam e not just from a plea, for example, but from a full trial, where evidence and argument s were presented for both sides. In addition, a review of the facts in this case, as gle aned from the evidence, makes clear that the crime for which appellant was convicted was extr emely brutal and, further, quite possibly was racially motivated. {¶ 27} For all of the foregoing reasons, appellant’s second assignmentof 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 pur suant 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 Cour t of Ohio’s Reporter of Decisions. Parties interested in viewing th e final reported version are advised to visit the Ohio Supreme Court’s web site at: http://www.supremecourt.ohio.gov/ROD/docs/.