Court of Appeals of Ohio, First District, Hamilton
Appeal From: Hamilton County Court of Common Pleas TRIAL NO.
Glaser, for Petitioner-Appellant,
T. Deters, Hamilton County Prosecuting Attorney, and Paula E.
Adams, Assistant Prosecuting Attorney, for
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.
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.
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
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.
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.
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
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.
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.
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. ...