[Cite as State v. Jackson, 2014-Ohio-5137.]

Court of Appeals of Ohio 

EIGHTH APPELLATE DISTRICT 

COUNTY OF CUYAHOGA 

JOURNAL ENTRY AND OPINION 

No. 100877

STATE OF OHIO

PLAINTIFF-APPELLEE 

vs. 

HARRISON JACKSON

DEFENDANT-APPELLANT 

JUDGMENT:

AFFIRMED IN PART, VACATED IN PART, 

AND REMANDED 

Criminal Appeal from the 

Cuyahoga County Court of Common Pleas 

Case No. CR-13-574810-A 

BEFORE: E.T. Gallagher, J., Kilbane, P.J., and Stewart, J. 

RELEASED AND JOURNALIZED: November 20, 2014 
ATTORNEYS FOR APPELLANT

Robert L. Tobik 

Cuyahoga County Public Defender 

BY: Jeffrey Gamso 

Assistant Public Defender 

310 Lakeside Avenue 

Suite 200 

Cleveland, Ohio 44113 

ATTORNEYS FOR APPELLEE

Timothy J. McGinty 

Cuyahoga County Prosecutor 

BY: Denise J. Salerno 

Assistant Prosecuting Attorney 

The Justice Center, 8th Floor 

1200 Ontario Street 

Cleveland, Ohio 44113 

EILEEN T. GALLAGHER, J.: 
{¶1} Defendant-appellant, Harrison Jackson (“Jackson”), appeals his conviction and 

sentence. We find some merit to the appeal and affirm in part and reverse in part, the trial 

court’s judgment. 

{¶2} In May 2013, Jackson was charged with rape, in violation of R.C. 2907.02(A)(2), 

and kidnaping, in violation of R.C. 2905.01(A)(4), as a result of an incident that occurred on 

June 7, 1993. At a bench trial, the victim (“A.G.”) testified that in 1993 she was a 35 year-old 

drug addict, who sold and used drugs. She knew Jackson, who was then 19 years old, because 

they sometimes smoked crack together, but she did not know him by any other name but “Cool 

Man.” 

{¶3} Sometime after midnight on June 7, 1993, while A.G. was sleeping, Jackson 

knocked on the door of the apartment where A.G. was temporarily living. He was looking for 

drugs, and A.G. told him she had none. A.G. testified that Jackson entered the apartment to use 

the bathroom, and A.G. went back to bed. Jackson subsequently entered A.G.’s bedroom and 

raped her. After the rape, A.G. walked to her sister’s house, and her sister took her to the 

hospital where a nurse completed a rape kit. A.G. gave a statement to police while she was in 

the hospital, and the police report was admitted into evidence at trial. 

{¶4} Jackson testified and told a different story. Jackson admitted that he came to 

A.G.’s apartment on the night of June 7, 1993, and that they had sexual intercourse. However, 

he stated that he came to A.G.’s apartment with some crack he had stolen and traded some of the 

crack for sex. He maintained the sex was consensual. After having sex, Jackson slept on the 

couch and left in the morning. 

{¶5} Jackson further testified that he saw A.G. with another woman named Diane the day 

after the alleged rape, and Diane told Jackson that A.G. accused him of raping her. Jackson 

testified that he confronted A.G., who was nearby, about the accusation, and she denied it. 
According to Jackson, the three of them then got high together. Jackson acknowledged he has 

been known as “Cool Man” all his life. 

{¶6} Two other witnesses testified at trial. Timothy Clark (“Clark”), an investigator in 

the Cuyahoga County Prosecutor’s Office, testified that he investigates “cold cases” in which 

DNA evidence was collected years ago but no suspect was identified at that time. He explained 

that many suspects now provide DNA samples in buccal swabs when they are arrested, and their 

DNA information is collected in the Combined DNA Index System (“CODIS”) database. As 

DNA tests are performed in both new and cold cases, the results of these tests are entered into the 

same database. If the DNA from a recently tested sample matches DNA previously entered into 

the CODIS database, there is a “CODIS hit,” which means the recently tested DNA matches an 

individual in the database. 

{¶7} In this case, DNA from A.G.’s rape kit was sent to the Ohio Attorney General’s 

Bureau of Criminal Investigation (“BCI”) for DNA testing in 2011. In 2013, there was a 

CODIS hit. The DNA test results indicated that DNA contained in A.G.’s rape kit matched the 

DNA of “Harrison Jackson, a.k.a. Tyrone Jackson, Desmond Moss, and Harrison Moss.” 

{¶8} Once the CODIS hit was made, the case was assigned to Clark, who reviewed the 

police report of the rape. Clark also called and interviewed A.G., who had stopped using drugs 

and started a new life in Atlanta, Georgia. After A.G. confirmed the allegations, Clark sent a 

photo array of suspects to Cynthia Nwokocha (“Nwokocha”), who was an investigator in the 

Fulton County District Attorney’s Office in Atlanta, Georgia. Nwokocha testified that she did 

not know any of the individuals pictured in the line up. When Nwokocha presented the line up 

to A.G., A.G. immediately identified Jackson as the man who raped her and called him “Cool 

Man.” Nwokocha subsequently mailed the line up back to Clark. 
{¶9} Clark interviewed Jackson following his arrest. Jackson admitted that he knew 

A.G. and that he had sex with her on June 7, 1993. Clark took another buccal swab that 

confirmed the results of the earlier DNA testing. 

{¶10} The trial court found Jackson guilty of both the rape and kidnaping charges and 

referred him to the Court Psychiatric Clinic for a H.B. 180 classification assessment. At the 

sentencing hearing, the court sentenced Jackson to 8-25 years in prison and classified him as a 

sexual predator. Jackson now appeals and raises four assignments of error, which we discuss 

out of order for the sake of economy. 

Manifest Weight of the Evidence 

{¶11} In the third assignment of error, Jackson asserts his convictions are not sustained 

by the manifest weight of the evidence. He argues the evidence produced at trial demonstrates 

that A.G. was lying when she claimed she was raped. 

{¶12} “A manifest weight challenge * * * questions whether the prosecution met its 

burden of persuasion.” State v. Thomas, 70 Ohio St.2d 79, 80, 434 N.E.2d 1356 (1982). The 

manifest weight of the evidence standard of review requires us to review the entire record, weigh 

the evidence and all reasonable inferences, consider the credibility of witnesses, and determine 

whether, in resolving conflicts in the evidence, the trier of fact clearly lost its way and created 

such a manifest miscarriage of justice that the conviction must be reversed and a new trial 

ordered. State v. Thompkins, 78 Ohio St.3d 380, 387, 678 N.E.2d 541 (1997). 

{¶13} The trier of fact “has the best opportunity to view the demeanor, attitude, and 

credibility of each witness, something that does not translate well on the written page.” Davis v. 

Flickinger, 77 Ohio St.3d 415, 418, 674 N.E.2d 1159 (1997). Therefore, the discretionary 

power to grant a new trial should only be exercised in exceptional cases where the evidence 

weighs heavily against the conviction. Thompkins, 78 Ohio St.3d at 386, 678 N.E.2d 541. 
{¶14} Jackson argues that discrepancies between A.G.’s testimony and the statement she 

gave police proves A.G. was lying. At trial, A.G. testified that she only knew Jackson by the 

name “Cool Man.” However, in her statement to police, she identified the rapist as “Henderson 

Jackson.” Therefore, Jackson argues, A.G. was lying when she stated she only knew him as 

“Cool Man.” 

{¶15} However, A.G. made her statement to police over 20 years ago. Since that time, 

A.G. has stopped using drugs, moved out-of-state, and obtained employment, which she has 

maintained for many years. She testified that she “put this incident behind her,” tried to forget 

it, and had no recollection of the statement she gave to police. 

{¶16} In addition, “Henderson Jackson” is not Jackson’s real name; it is one of several 

aliases he has used over the years. And Jackson admitted at trial that he has been called “Cool 

Man” all his life. After over 20 years, it is conceivable that A.G. would forget some details of 

the incident, including a false name the defendant rarely used. Moreover, the police report 

indicates that A.G. identified the suspect as “Cool Man,” in addition to “Henderson Jackson.” 

Therefore, A.G.’s testimony that Cool Man raped her has been consistent since the day the rape 

occurred. 

{¶17} Jackson argues A.G.’s testimony that the rape occurred after midnight conflicts 

with the timing evidenced in the police report because the police report was not completed until 

7:30 a.m. However, A.G. testified that Jackson came into the apartment “sometime after 

midnight.” She had been sleeping and was not sure of the exact time. After midnight could 

mean several hours after midnight. Just because A.G. did not know the exact hour and minute 

the rape occurred, does not prove she was lying. 

{¶18} Jackson also contends A.G.’s testimony that she did not know her daughter had 

been dating Jackson and was pregnant with his child until shortly before trial also proves she was 
lying. Perhaps the defense considered the pregnancy of A.G.’s daughter relevant to show a 

motive to lie, but the court had practically no information regarding A.G.’s relationship with her 

daughter upon which the court could draw such conclusion. Any motive, such as revenge, is 

speculative. It is not clear how the pregnancy of A.G.’s daughter is relevant. The trial court 

was in the best position to assess A.G.’s credibility and found her testimony credible 

{¶19} Moreover, the consistencies in A.G.’s story far outweigh any discrepancies. The 

police report indicates she told police on the day the rape occurred that the suspect was known as 

“Cool Man.” Jackson admitted that he has been called “Cool Man” all his life. When Clark 

interviewed her about the rape in 2013, her statements were consistent with her statements in the 

police report. When Nwokocha presented A.G. with a photo array of suspects, she immediately 

identified Jackson as the rapist. As it turned out, the DNA of the suspect she identified matched 

the DNA found in A.G.’s rape kit. Jackson admitted he had sex with A.G., but claimed it was 

consensual. Yet A.G. described how the rape occurred in detail. Although she did not 

remember a false name Jackson may have used 20 years ago, she remembered the more traumatic 

aspects of the incident. 

{¶20} The court found A.G.’s testimony more credible than Jackson’s. Under these 

circumstances, we cannot say the trier of fact clearly lost its way. Therefore, the third assignment 

of error is overruled. 

Sexual Predator Classification 

{¶21} In the second assignment of error, Jackson argues the trial court erred in classifying 

him as a sexual predator. He contends the trial court lacked authority to make a sexual predator 

determination without holding a hearing. We agree. 

{¶22} The trial court classified Jackson as a sexual predator under Ohio’s former sexual 

offender registration law, commonly known as “Megan’s Law.” Although Jackson committed the 
rape against A.G. before the effective date of Megan’s law, Jackson does not contest the 

applicability of Megan’s Law to this case. Indeed, the Ohio Supreme Court has held that the 

law applies retroactively to offenses committed prior to its effective date. State v. Cook, 83 

Ohio St.3d 404, 410, 700 N.E.2d 570 (1998). See also State v. Williams, 129 Ohio St.3d 344, 

2011-Ohio-3374, 952 N.E.2d 1108 (explaining that the legislature intended that Megan’s Law 

apply retroactively).1

{¶23} Under Megan’s Law, a convicted sex offender may be classified as a “sexually 

oriented offender,” “habitual sex offender,” or “sexual predator,” depending on the offender’s 

history of sex crime convictions. Megan’s Law also established different registration 

requirements for each class commensurate with the seriousness of the classification. See former 

R.C. 2950.07(B)(1) and 2950.06(B)(1). Sexual predators are required to register every 90 days 

for the remainder of the offender’s life. See former R.C. 2950.07(B)(1) and 2950.06(B)(1). 

{¶24} Under Megan’s Law, R.C. 2950.01(E)(1) defines a “sexual predator” as a person 

who has been convicted of or pleaded guilty to committing a sexually oriented offense and “is 

likely to engage in the future in one or more sexually oriented offenses.” Former R.C. 

2950.09(B)(1)(a) requires trial courts to conduct a hearing prior to classifying a defendant as a 

sexual predator, and that “the offender and the prosecutor shall have an opportunity to testify, 

present evidence, call and examine witnesses and expert witnesses, and cross-examine witnesses 

and expert witnesses regarding the determination as to whether the offender is a sexual predator.” 

 (Emphasis added.) See State v. Blake-Taylor, 8th Dist. Cuyahoga No. 100419, 

2014-Ohio-3495, ¶ 4. 

 1 The current statutory scheme, Am.Sub. S.B. 10, was enacted in 2007, and is based on the 

federal Adam Walsh Act, 42 U.S.C. 16901 et seq. Under the Adam Walsh Act, an offender is now 

subject to additional reporting and registration requirements and is subject to those requirements for a 

longer time.
{¶25} After reviewing all the evidence, the trial court “shall determine by clear and 

convincing evidence whether the offender is a sexual predator.” Former R.C. 2950.09(B)(4). 

If the court determines the offender is a sexual predator, “the judge shall specify in the offender’s 

sentence and the judgment of conviction that contains the sentence that the judge has determined 

that the offender is a sexual predator and shall specify that the determination was pursuant to 

[R.C. 2950.09(B)].” Blake-Taylor at ¶ 4, quoting R.C. 2950.09(B)(1). 

{¶26} Jackson did not object to the court’s failure to hold a hearing. The state argues 

that because sexual predator classifications are civil in nature, this court must review this error 

under a civil plain error standard. In civil cases, the plain error doctrine applies only “in the 

extremely rare case involving exceptional circumstances where error, to which no objection was 

made at the trial court, seriously affects the basic fairness, integrity, or public reputation of the 

judicial process, thereby challenging the legitimacy of the underlying judicial process itself.” 

State v. Gowdy, 88 Ohio St.3d 387, 399, 727 N.E.2d 579 (2000). In Gowdy, the Ohio Supreme 

Court held that failure to provide the defendant with adequate notice of a sexual predator 

classification hearing “involves such exceptional circumstances” that it amounts to plain error. 

Id. at 399. The court in Gowdy further held that “[a]bsent compliance with the mandatory 

notice provision of R.C. 2950.09(B)(1), a defendant’s classification must be vacated and the 

matter remanded for the trial court to conduct a sexual offender classification hearing with proper 

advance notice of the hearing to all parties.” Id. at 399. 

{¶27} In this case, the trial court did not hold a classification hearing. Yet, it announced 

at the sentencing hearing that it had classified Jackson a sexual predator. Since the Supreme 

Court in Gowdy held that failure to provide the defendant with notice of a classification hearing 

amounts to plain error, certainly the failure to actually hold the hearing in violation of a statutory 

mandate is also plain error. 
{¶28} Therefore, the second assignment of error is sustained.

Sentence

{¶29} In the fourth assignment of error, Jackson argues the trial court lacked authority to 

sentence him to an indefinite prison term of 8-25 years under pre-S.B. 2 sentencing law. He 

contends that although he committed the rape and kidnaping offenses in 1993, he should have 

been sentenced under Am.Sub.H.B. 86 (“H.B. 86”), which became effective on September 30, 

2011. The state, on the other hand, contends that because H.B. 86 did not repeal Am.Sub.S.B. 

No. 2 (“S.B. 2”) and S.B. 2 only applies to offenses committed on or after July 1, 1996, 

Jackson’s rape and kidnaping offenses, which were committed in 1993, are not subject to the 

sentencing amendments in H.B. 86. 

{¶30} Section 5 of S.B. 2 states: 

The provisions of the Revised Code in existence prior to July 1, 1996, shall apply 

to a person upon whom a court imposed a term of imprisonment prior to that date 

and, NOTWITHSTANDING DIVISION (B) OF SECTION 1.58 OF THE 

REVISED CODE, to a person upon whom a court on or after that date and in 

accordance with the law in existence prior to that date, IMPOSES a term of 

imprisonment for an offense that was committed prior to that date. 

(Emphasis sic.) 

Thus, in S.B. 2 the General Assembly specifically declared that all defendants who committed 

crimes on or before July 1, 1996 had to be sentenced under the law in existence at the time of the 

offense, “notwithstanding division (B) of section 1.58 of the Revised Code.” Section 3, 

Am.Sub.S.B. No. 269, 146 Ohio Laws, Part IV, 11099, amending Section 5 of S.B. 2. See State 

v. Rush, 83 Ohio St.3d 53, 697 N.E.2d 634 (1998). 

{¶31} However, H.B. 86 does not include this exclusionary language. In fact, in 

Sections 3 and 4 of the act, the General Assembly expressly provides that certain specified 

offenses and certain sentencing provisions are subject to H.B. 86 sentencing amendments even 
though the subject offenses were committed prior to its effective date. As relevant here, Section 

4 states, in relevant part: 

SECTION 4. The amendments to * * * division (A) of section 2929.14 of the 

Revised Code that are made in this act apply to a person penalized under th[at] 

section[] on or after the effective date of this section and to a person to whom 

division (B) of section 1.58 of the Revised Code makes the amendments 

applicable. 

{¶32} Division (A) of R.C. 2929.14, which governs basic prison terms, states in relevant 

part: 

[I]f the court imposing a sentence upon an offender for a felony elects or is 

required to impose a prison term on the offender pursuant to this chapter, the court 

shall impose a definite prison term that shall be one of the following: 

(1) For a felony of the first degree, the prison term shall be three, four, five, six, 

seven, eight, nine, ten, or eleven years. 

{¶33} Jackson was convicted of rape in violation of R.C. 2907.02(A)(2) and kidnaping in 

violation of R.C. 2905.01(A)(4). Both are first-degree felonies. Pursuant to R.C. 2929.14(A), 

as amended by H.B. 86, the trial court was required to impose a definite prison term of “three, 

four, five, six, seven, eight, nine, ten, or eleven years,” for first-degree felonies. Section 4 of 

H.B. 86 specifically states that the basic prison terms outlined in R.C. 2929.14(A), as amended 

by the act, apply to a person who is penalized under that section. 

{¶34} In contrast to Section 5 of S.B. 2, which excluded application of R.C. 1.58(B) from 

its provisions, Section 4 of H.B. 86 expressly states H.B. 86 amendments apply “to a person to 

whom division (B) of section 1.58 of the Revised Code makes the amendments applicable.” 

R.C. 1.58(B) states: 

If the penalty, forfeiture, or punishment for any offense is reduced by a 

reenactment or amendment of a statute, the penalty, forfeiture, or punishment, if 

not already imposed, shall be imposed according to the statute as amended. 

{¶35} These provisions are consistent with the legislative intent behind H.B. 86. In 

State v. Limoli, 140 Ohio St.3d 188, 2014-Ohio-3072, 16 N.E.3d 641, the Ohio Supreme Court 
examined the effect of H.B. 86 on a defendant who was convicted of an offense specified in 

Section 3 of H.B. 86 prior to its effective date but was not sentenced until after its effective date. 

The specified offense was possession of crack cocaine in violation of R.C. 2925.11. The court 

noted that Section 3 of H.B. 86, which is very similar to Section 4, specifically identified R.C. 

2925.11 and stated that R.C. 1.58(B) makes the amendments to that code section applicable. 

Therefore, the Limoli court concluded that individuals who possessed crack cocaine in violation 

of R.C. 2925.11 prior to H.B. 86’s effective date, but are penalized after its effective date, must 

be sentenced under the H.B. 86 amendments. Regarding the legislature’s intent, the Supreme 

Court explained: 

The goal of the General Assembly in enacting H.B. 86 was “to reduce the state’s 

prison population and to save the associated costs of incarceration by diverting 

certain offenders from prison and by shortening the terms of other offenders 

sentenced to prison.” [State v.] Taylor, 138 Ohio St.3d 194, 2014-Ohio-460, 5 

N.E.3d 612, at ¶ 17, citing Ohio Legislative Service Commission, Fiscal Note & 

Local Impact Statement to Am.Sub.H.B. 86, at 3 (Sept. 30, 2011). 

{¶36} Athough neither Section 3 nor Section 4 specify rape and kidnaping as offenses 

covered by H.B. 86, Section 4 states that H.B. 86 amendments apply to defendants penalized 

under R.C. 2929.14(A). Moreover, H.B. 86 expressly states that where its sentencing 

provisions provide a more lenient sentence than previous sentencing statutes, then R.C. 1.58(B) 

makes the H.B. 86 amendments applicable. See Sections 3 and 4 of H.B. 86. 

{¶37} Jackson committed the rape and kidnaping offenses on June 7, 1993. He was 

charged with these offenses, which are both first-degree felonies, on May 29, 2013. As 

previously stated, R.C. 2929.14(A)(1), as amended by H.B. 86, states that the basic prison term 

for a first-degree felony “shall be three, four, five, six, seven, eight, nine, ten, or eleven years.” 
Yet, the trial court sentenced Jackson to an indefinite term of 8 to 25 years pursuant to the 

sentencing provisions in effect in 1993, when the offense was committed. The maximum prison 

term Jackson could receive for rape under R.C. 2929.14(A)(1) as amended by H.B. 86 is only 11 

years, whereas the maximum the trial court imposed under pre-S.B. 2 sentencing laws was 25 

years. Section 4 provides that Jackson is entitled to the more lenient sentencing provisions of 

H.B. 86 by virtue of R.C. 1.58(B). Therefore, the indefinite prison sentence was not authorized 

by law and violated Section 4 of H.B. 86. 

{¶38} In State v. Underwood, 124 Ohio St.3d 365, 2010-Ohio-1, 922 N.E.2d 923, the 

Ohio Supreme Court held that “sentences that do not comport with mandatory provisions are 

subject to total resentencing.” Id. at ¶ 20, citing State v. Bezak, 114 Ohio St.3d 94, 

2007-Ohio-3250, 868 N.E.2d 961, ¶ 11. Unauthorized sentences are illegal and void ab initio. 

State v. Beasley, 14 Ohio St.3d 74, 75, 471 N.E.2d 774 (1984). Therefore, Jackson’s indefinite 

sentence must be vacated. 

{¶39} The fourth assignment of error is sustained. 

Postrelease Control 

{¶40} In the first assignment of error, Jackson argues the trial court erroneously imposed 

a five-year period of postrelease control on him. He contends that because the offenses 

occurred three years before the effective date of S.B. 2, the trial court had no authority to impose 

postrelease control on him in this case. 

{¶41} Prior to S.B. 2, which became effective on July 1, 1996, inmates served indefinite 

sentences, and the parole authority had discretion to determine when the inmate would be 

released from prison and the terms of postrelease supervision, which was then called “parole.” 

Woods v. Telb, 89 Ohio St.3d 504, 508, 733 N.E.2d 1103 (2000). Postrelease control was 
enacted as part of S.B. 2, which eliminated indefinite sentences. Rush, 83 Ohio St.3d 53, 54, 

697 N.E.2d 634. 

{¶42} Since the passage of H.B. 86, defendants are still given definite sentences with 

varying periods of postrelease control depending on the severity of the convictions. Although 

S.B. 2 made the change from parole supervision to postrelease control, R.C. 2967.28, which 

governs postrelease control, has been amended several times and was last amended by 

Am.Sub.S.B. No. 160 (“S.B. 160”), which became effective March 22, 2013. Therefore, the 

General Assembly intended that postrelease control provided in R.C. 2967.28 shall apply to 

sentences imposed under H.B. 86. Since Jackson should have been sentenced under the 

sentencing provisions of H.B. 86, he is subject to postrelease control. 

Since Jackson should have been sentenced under the sentencing provisions of H.B. 86, and H.B. 

86 includes postrelease control, this assigned error is moot. 

{¶43} Judgment affirmed in part, vacated in part, and remanded. Jackson’s convictions 

are affirmed, however we vacate Jackson’s sentence. We remand the case to the trial court to 

hold a sexual offender classification hearing and for a new sentencing hearing to apply H.B. 86’s 

sentencing provisions, including postrelease control. 

It is ordered that appellee and appellant share 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. The defendant’s conviction having been affirmed, 

any bail pending appeal is terminated. Case remanded to the trial court for resentencing. 

A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the 

Rules of Appellate Procedure. 
EILEEN T. GALLAGHER, JUDGE 

MARY EILEEN KILBANE, P.J., and 

MELODY J. STEWART, J., CONCUR