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Phipps v. State

Court of Appeals of Ohio, First District, Hamilton

February 28, 2018

KEVIN PHIPPS, Petitioner-Appellant,
v.
STATE OF OHIO, Respondent-Appellee.

         Criminal Appeal From: Hamilton County Court of Common Pleas TRIAL NO. SP-1400014

          Angela Glaser, for Petitioner-Appellant,

          Joseph T. Deters, Hamilton County Prosecuting Attorney, and Paula E. Adams, Assistant Prosecuting Attorney, for Respondent-Appellee.

          OPINION

          MOCK, PRESIDING JUDGE.

         {¶1} In 2006 in New York, petitioner-appellant Kevin Phipps was convicted of "sexual misconduct, " a misdemeanor. He was required to register as a sex offender for life in New York. He subsequently moved to Ohio and was automatically classified by the Hamilton County sheriff as a sexual predator under former R.C. 2950.09.

         {¶2} On September 24, 2014, Phipps filed a petition for reclassification under former R.C. 2950.09(F) and for credit for registration under former R.C. 2950.07(E). He also filed a motion to vacate the sheriffs classification. Phipps challenged his classification on various constitutional grounds and on the grounds that the state had not proved the fact of his conviction in New York and that the New York offense of sexual misconduct was not substantially equivalent to an Ohio sexually-oriented offense.

         {¶3} Following a hearing, the trial court entered a judgment on September 13, 2016, finding that the state had proved "the fact of conviction in the State of New York." After a second hearing, the trial court entered an order on September 22, 2016, denying Phipps's motion to vacate the classification. The court determined that the New York offense of sexual misconduct was substantially equivalent to the Ohio offense of unlawful sexual conduct with a minor. The September 22, 2016 order also stated that Phipps "had a duty to register as a sexual offender in Ohio" and that his "petition is denied." Phipps has appealed both judgments.

         {¶4} Under former R.C. 2950.09(A), an out-of-state sex offender who had been convicted of a nonexempt sex offense and was required to register for life as a sex offender in the state where he was convicted was automatically classified as a sexual predator in Ohio. Former R.C. 2950.09(F) permitted the offender to challenge the sexual-predator classification. When an out-of-state offender challenged his classification under former R.C. 2950.09(F), the trial court was first required to determine whether the sexually-oriented offense in the other state was substantially equivalent to an Ohio sexually-oriented offense. State v. Pasqua, 157 Ohio App.3d 427, 2004-Ohio-2992, 811 N.E.2d 601, ¶ 22 (1st Dist.). If the out-of-state offense was not substantially equivalent to an Ohio sexually-oriented offense, the offender was not required to register in Ohio. See Phan v. Leis, 1st Dist. Hamilton No. C-050842, 2006-Ohio-5898; Doe v. Leis, 1st Dist. Hamilton No. C-050591, 2006-Ohio-4507. If the court found that the out-of-state offense was substantially equivalent to an Ohio sexually-oriented offense, the trial court could determine that the out-of-state offender was not a sexual predator if the offender proved, by clear and convincing evidence, that the registration requirement of the state where the offender had been convicted was not "substantially similar" to Ohio's sexual-predator classification under former R.C. Chapter 2950. Logue v. Leis, 169 Ohio App.3d 356, 2006-Ohio-5597, 862 N.E.2d 900, ¶ 4 (1st Dist.). The offender was entitled to a hearing where he had to show, by clear and convincing evidence, that he was not likely to commit a sexually-oriented offense in the future. Id., citing Pasqua at ¶ 22.

         {¶5} We first address Phipps's second assignment of error, which alleges that the trial court erred in denying his motion to vacate the classification where the state failed to prove the fact of his conviction. Phipps argues that the state was required to prove his New York conviction with a document that complied with R.C. 2945.75(B)(1) and Crim.R. 32(C). We disagree.

         {¶6} The procedures under former RC. Chapter 2950 were civil in nature. State v. Cook, 83 Ohio St.3d 404, 700 N.E.2d 570 (1998). We hold that former RC. 2950.07(F) did not require the out-of-state sex offense to be proved in the same way that the state would have had to prove a prior conviction beyond a reasonable doubt in a criminal case where the prior conviction was an element of a new criminal offense or was required to elevate the level of a crime or enhance a sentence.

         {¶7} State's exhibit 1 is a certified copy of a document from the Supreme Court of the State of New York, County of Kings, showing that on February 6, 2006, Phipps had pled guilty to sexual misconduct in violation of New York Penal Law 130.20-1. A charge of rape in the third degree was dismissed. State's exhibit 3 is a certified copy of the certificate of disposition of the indictment, which showed that Phipps had pleaded guilty to, had been convicted of, and had been sentenced for sexual misconduct. We hold that the trial court did not err in determining that the documents submitted by the state were sufficient to prove the fact of Phipps's New York conviction for sexual misconduct. The second assignment of error is overruled.

         {¶8} Phipps's first assignment of error alleges that the trial court erred in denying his motion to vacate the sexual-predator classification, because the New York offense of sexual misconduct is not substantially equivalent to the Ohio offense of unlawful sexual conduct with a minor. Phipps argues that the New York sexual-misconduct statutes and Ohio's unlawful-sexual-conduct-with-a-minor statute are not substantially similar because of the differences in the ages of the offender, the ages of the victims, and the mens rea required for a conviction. Further, the Ohio offense is a felony, while the New York offense is a misdemeanor.

         {¶9} The section of New York Penal Law 130.20 under which Phipps was convicted provides that "[a] person is guilty of sexual misconduct when * * * [h]e or she engages in sexual intercourse with another person without such person's consent * * *." Under New York Penal Law 130.05, a person less than 17 years old is deemed incapable of giving consent. R.C. 2907.04(A), Ohio's unlawful-sexual-conduct-with-a-minor offense states, "No person who is eighteen years of age or older shall engage in sexual conduct with another, who is not the spouse of the offender, when the offender knows the other person is thirteen years of age or older but less than sixteen years of age, or the offender is reckless in that regard." R.C. 2907.01(A) defines "sexual conduct" as

vaginal intercourse between a male and female; anal intercourse, fellatio, and, cunnilingus between persons regardless of sex; and, without privilege to do so, the insertion, however slight, of any part of the body or any instrument, apparatus, or other object into the vaginal or anal opening of another. ...

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