[Cite as State v. Rike,

.]

IN THE COURT OF APPEALS FIRST APPELLATE DISTRICT OF OHIO HAMILTON COUNTY, OHIO

STATE OF OHIO, : APPEAL NO. C-190401 TRIAL NO. B-1700875 Plaintiff-Appellant, :

vs. : O P I N I O N.

JONATHAN RIKE, :

Defendant-Appellee. :

Criminal Appeal From: Hamilton County Court of Common Pleas

Judgment Appealed From Is: Affirmed in Part, Reversed in Part, and Cause Remanded

Date of Judgment Entry on Appeal: September 30, 2020

Joseph T. Deters, Hamilton County Prosecuting Attorney, and Mylanda J. Machol, Assistant Prosecuting Attorney, for Plaintiff-Appellee,

Raymond T. Faller, Hamilton County Public Defender, and David Hoffmann, Assistant Public Defender, for Defendant-Appellant. OHIO FIRST DISTRICT COURT OF APPEALS

ZAYAS, Presiding Judge.

{¶1} Jonathan Rike appeals his convictions, after a jury trial, for attempted

murder with a gun specification and improperly handling firearms in a motor

vehicle. Rike contends that the trial court erred by allowing the amendment of the

improperly-handling-firearms-in-a-motor-vehicle charge, his trial counsel provided

ineffective assistance, he was denied a fair trial due to prosecutorial misconduct, the

convictions were not supported by sufficient evidence and were against the manifest

weight of the evidence, the trial court erred by imposing multiple sentences on allied

offenses and in ordering consecutive sentences, and the Violent Offender Registry

violates the Ex Post Facto Clause and the Retroactivity Clause.

{¶2} We agree that the trial court erred in amending the charge of

improperly handling firearms in a motor vehicle, and we vacate that conviction and

remand the cause for further proceedings. We affirm the trial court’s judgment in all

other respects.

Factual and Procedural Background

{¶3} Jonathan Rike was charged with attempted murder with three gun

specifications, one for having a firearm, one for brandishing the firearm, and one for

discharging a firearm, felonious assault with the same three specifications, and

improperly handling firearms in a motor vehicle for transporting a loaded firearm

that was accessible to him without leaving the vehicle. Rike initially entered a not-

guilty plea, but after he was found incompetent, he entered a plea of not guilty by

reason of insanity. That plea was later withdrawn, and he proceeded to a jury trial.

{¶4} On the morning of the trial, the state made an oral motion to amend

the improperly-handling-firearms-in-a-motor-vehicle charge. The state argued that

the amendment was due to a scrivener’s error. Specifically, the state contended that

2 OHIO FIRST DISTRICT COURT OF APPEALS

the indictment charged Rike with a violation of R.C. 2923.16(B), which prohibits

transporting a loaded weapon that was accessible, but Rike should have been

charged with violating R.C. 2923.16(A) for knowingly discharging a firearm while in

a motor vehicle. The state further argued that Rike would not be prejudiced because

he was on notice that the state had charged him with discharging a firearm, and the

amendment was previously discussed with Rike’s counsel.

{¶5} Counsel for Rike objected on the ground that the amendment was not

to correct a scrivener’s error because it changed the offense from transporting a

firearm to discharging a firearm. The trial court granted the motion to amend, and

the trial began.

{¶6} Daniel Jarvis testified that he was driving his daughter Gracy and her

friend Alynn to choir practice on the morning of February 11, 2017. He was driving

northbound on I-75 at approximately 6:45 a.m. The traffic was very light that

morning, and he was driving in the high speed lane. A silver BMW was in front of

him in the center lane. As he approached to pass the car, the car swerved into his

lane, so he took his foot off the gas to avoid hitting the car. Then the car swerved

back into the center lane. Jarvis continued forward, and as he was passing the BMW,

he heard a loud sound like a cabinet door slamming. Alynn, who was sitting in the

backseat on the passenger side of the car, said, “That guy just shot at us.”

{¶7} Jarvis called 911, and continued driving toward his exit. As he was

approaching the exit, he was in the right lane, and the BMW passed him. He was

able to get the license plate number. His daughter also took photos of the car and

license plate. The driver of the BMW gave him a dirty look. Once he exited from the

highway, he pulled over to see if there was any damage to his car. He did not see

3 OHIO FIRST DISTRICT COURT OF APPEALS

anything, so he took the children to Princeton High School and waited for an officer

to arrive. He examined the car more closely and found that a bullet had hit the

passenger’s side door handle.

{¶8} Gracey, who was seated in the front passenger seat, testified that after

her father suddenly slowed the car, she looked over at the car, and she saw the driver

roll down the window. A person pulled out a gun and shot at them. She felt the

bullet hit the car. She watched as he pointed the gun toward the car, and she saw the

barrel of the gun. The cars were side-by-side when the gun was fired. She saw the

man, then she saw the gun, and then she heard the shot. She was 13 years old at the

time of the shooting.

{¶9} Allyn, who was in the back passenger seat, testified that the other

driver’s window was lined up with hers. She saw him roll down the window, pull out

a gun, and shoot the car. He looked to be in his early 40’s and was bald, and had a

“mean expression” on his face. It looked like he was aiming for the back of the car.

She stated that the gun was in his right hand, and his left hand was on the steering

wheel. He reached over, with half of his arm out the window. He was looking at the

car with a very angry expression, with his gun aimed at car the entire time. She saw a

black handgun. He looked very angry when they pulled off the highway. She was 14

years old at the time of the shooting.

{¶10} Sergeant Christopher Lind, a Lockland police officer, responded to the

school. He viewed the victim’s car and the photos of the car and plate, and

determined that the registered owner was Jonathan C. Rike. He alerted the Ohio

State Highway Patrol (“OSHP”), and received a notification 20-25 minutes later that

OSHP had the vehicle stopped on I-75 in Springboro. He drove there and met with

4 OHIO FIRST DISTRICT COURT OF APPEALS

Trooper Hickey who had placed Rike in his patrol car. Hickey advised that a gun

lockbox was in the back seat, and he found a Smith and Wesson .380-caliber

bodyguard firearm, semiautomatic, on the front passenger seat. The gun had a six-

capacity magazine, and when he removed the magazine, he found four bullets in the

magazine and one loaded in the chamber. He also found hollow point bullets.

{¶11} Lind transported Rike to the Hamilton County Justice Center. During

the transport, Rike was annoyed and repeatedly denied shooting at anyone. Rike

told Hickey a semi-truck tried to run him off the road, so he waved his gun out the

window. Lind reviewed an Ohio Department of Transportation video, but the

shooting was not on the video. He did not see any trucks on the video either. Rike

told Lind that he had been run off the road before by semi-trucks, and he had filed a

police report at Xenia Police Department. Lind could not find any police reports.

{¶12} Lind testified that Rike’s gun had a long trigger pull and would have to

be pulled back “pretty far” to fire. He further stated that firearms with a long trigger

pull require a conscious effort to fire.

{¶13} Criminalist Emily Weber testified that Rike’s hand tested positive for

gunshot residue.

{¶14} Ben Jeschke, a forensic scientist at the Hamilton County Coroner’s

Office crime lab, testified that the bullet retrieved from Jarvis’s car was fired from

Rike’s gun. He also testified that the gun has a recoil when fired, and the gun is

difficult to fire because it has a five-to-ten pound trigger pull.

{¶15} After the state rested, defense counsel and the state engaged in an off-

the-record sidebar. Afterwards, the trial court put on the record that the parties had

agreed to reserve the defense motions until the end of trial.

5 OHIO FIRST DISTRICT COURT OF APPEALS

{¶16} Rike was the sole witness for the defense. He stated that he had

bipolar disorder with psychotic features that had been undiagnosed for the past five

years. On the morning of the offense, a Swift 18 wheeler truck impinged on his lane

twice. Rike then sped up, but a car driven by a young, white man was immediately on

his bumper. After the truck incident, Rike had put his gun on the floorboard and

then into the console. The gun was loaded, cocked, and the safety was off.

{¶17} After the encounter with the car following him too closely, Rike put the

gun in his lap. Then he put the gun in his left hand, and pointed it out the window at

the second car. He testified that he accidentally fired the gun because he was focused

on traffic because it was heavier than usual. Initially, he testified that he never saw

the Jarvis vehicle, but later stated that he looked in his rear-view mirror at the Jarvis

vehicle. He admitted that he had his gun out the window, but testified that he did

not intend to fire.

{¶18} On cross-examination, he stated that he did not recall swerving into

the fast lane. He admitted that he had not previously mentioned a Swift truck or the

two lane impingements. Rike said that he forget to mention the second car because

he knew he accidentally discharged the firearm. He realized that he had fired the

gun when it happened, and he immediately looked to his left and only saw a concrete

embankment. Rike testified that he was in a heightened state of anxiety, and he did

not have time to call 911, but he also testified that he did not think to call 911.

{¶19} After the incident with the truck, Rike rolled down his window. He

stated that he did not see the Jarvis vehicle until after he fired the gun. He further

testified that Jarvis glared at him and gave him an angry look before Jarvis exited

from the highway. After Rike testified, the defense rested. Counsel for Rike

6 OHIO FIRST DISTRICT COURT OF APPEALS

referenced the earlier sidebar, and moved for an acquittal pursuant to Crim.R. 29(A)

without any argument. The trial court treated the motion as if it had been made at

the close of the state’s case and overruled the motion.

{¶20} The jury found Rike guilty of all charges, and the trial court sentenced

him to 11 years’ incarceration for the attempted murder, one year on the first gun

specification to be served prior to and consecutively to the 11 years, and 18 months’

incarceration on the improper handling of a firearm to be served consecutively to the

attempted-murder sentence.

The Amendment Improperly Changed the Identity of the Offense

{¶21} In his first assignment of error, Rike asserts that the trial court erred

by allowing the state to amend the improperly-handling-firearms charge in violation

of Crim.R. 7(D). Specifically, he contends that the amendment changed the identity

of the offense charged. Whether an amendment changed the identity of the crime is

a question of law that we review de novo. State v. Kittle, 4th Dist. Athens No.

04CA41,

.

{¶22} Crim.R. 7(D) states, in relevant part:

The court may at any time before, during, or after a trial amend the

indictment * * * in respect to any defect, imperfection, or omission in

form or substance, or of any variance with the evidence, provided no

change is made in the name or identity of the crime charged.

{¶23} A trial court commits reversible error when it permits an amendment

that changes the name or identity of the offense charged, regardless of whether the

defendant suffered prejudice. Kittle at ¶ 12. “Under Crim.R. 7(D), a change in the

name or identity of the charged crime occurs when an indictment is amended so that

7 OHIO FIRST DISTRICT COURT OF APPEALS

the offense alleged in the original indictment and the offense alleged in the amended

indictment contain different elements requiring independent proof.” State v. Dukes,

3d Dist. Allen Nos. 1-02-64, 1-02-92 and 1-02-93,

, ¶ 10.

{¶24} In Dukes, the defendant was charged with kidnapping in violation of

R.C. 2905.01(A)(1), which provides “[n]o person, by force, threat, or deception * * *

shall remove another from the place where the other person is found or restrain the

liberty of the other person, for any of the following purposes: (1) To hold for ransom,

or as a shield or hostage.” Id. at ¶ 7. The state amended that charge to a violation of

R.C. 2905.01(A)(4), which states “[n]o person, by force, threat, or deception * * *

shall remove another from the place where the other person is found or restrain the

liberty of the other person, for any of the following purposes: * * * (4) To engage in

sexual activity, as defined in section 2907.01 of the Revised Code, with the victim

against the victim’s will.” Id. at ¶ 8.

{¶25} Although the amendment did not change the name of the offense, the

Third District Court of Appeals found that the identity of the offense was changed

because each section required proof of different elements. Id. at ¶ 10. Accordingly,

the amendment violated Crim.R. 7(D), and the conviction was vacated. Id. at ¶ 10,

22.

{¶26} Similarly, this court concluded that:

Where an indictment alleged a taking of property ‘without’ the owner’s

consent (R.C. 2913.02(A)(1)), and the trial court permitted an

amendment of the indictment so that it alleged a taking ‘beyond’ the

owner’s consent (R.C. 2913.02(A)(2)), there was a change in the

8 OHIO FIRST DISTRICT COURT OF APPEALS

identity of the crime charged in contravention of Crim.R. 7(D),

requiring reversal and discharge of the defendant.

State v. Woody,

,

(1st Dist. 1986).

{¶27} In this case, the defendant was initially indicted under R.C.

2923.16(B), which states: “No person shall knowingly transport or have a loaded

firearm in a motor vehicle in such a manner that the firearm is accessible to the

operator or any passenger without leaving the vehicle.” The charge was amended to

a violation of R.C. 2923.16(A), which states: “No person shall knowingly discharge a

firearm while in or on a motor vehicle.” Although the name of the offense did not

change, the subsections contain different elements, and therefore the amendment

changed the identity of the crime. See id.; Dukes at ¶ 10.

{¶28} Accordingly, we sustain the assignment of error, vacate the conviction

and remand the cause for further proceedings consistent with this opinion.

Ineffective Assistance of Counsel

{¶29} In his second assignment of error, Rike alleges that his trial counsel

was ineffective for failing to challenge a juror for cause, for requesting the court to

reserve ruling on his motion for a judgment of acquittal, for failing to request an

instruction on accident, and for failing to object to the prosecutor’s closing remarks.

{¶30} To prevail on an ineffective-assistance-of-counsel claim, Rike must

show that trial counsel’s performance fell below an objective standard of

reasonableness, and he was prejudiced as a result. Strickland v. Washington,

,

,

(1984). In order to

demonstrate prejudice, Rike must establish that, but for counsel’s errors, there is a

reasonable probability that the result of trial would have been different. State v.

9 OHIO FIRST DISTRICT COURT OF APPEALS

Burke,

,

,

, ¶ 6. The failure to make

an adequate showing on either prong is fatal to an ineffective-assistance-of-counsel

claim. See

.

1. Failure to Challenge a Juror for Cause

{¶31} During voir dire, defense counsel reiterated that the state had the

burden to prove that Rike was guilty beyond a reasonable doubt. He further

explained to the jury that even though they may disapprove of Rike’s conduct, they

must find him not guilty if the state failed to prove he purposefully fired the shots.

When counsel asked the jurors if they all agreed with that, none of the jurors

disagreed. Then, the following exchange occurred between defense counsel and a

prospective juror:

Mr. Keller: So the case is not about, that any criminal case is not

about, it’s not about whether you like the man sitting over here at the

end of all this.

You may think - - I hope you don’t - - but you may think that he’s a

pretty miserable excuse for a human being.

But you also don’t think that he knowingly did the acts that amount to

the crime, what’s your verdict?

[Prospective Juror], what’s your verdict?

Prospective juror: Repeat that, sir?

Mr. Keller: At the end of the case, do you think that Mr. Rike is a

pretty miserable excuse for a human being?

10 OHIO FIRST DISTRICT COURT OF APPEALS

But you also think that the prosecutor has not proven to you that he

knowingly did felonious assault or attempted murder, what’s your

verdict?

Prospective juror: Guilty.

Mr. Keller: Why?

Prospective juror: It’s not right to be shooting at people on the

expressway.

Mr. Keller: Okay. But do you understand - - let me try somebody

else, then.

{¶32} Courts have consistently declined to “second-guess trial strategy

decisions” or impose “hindsight views about how current counsel might have voir

dired the jury differently.” State v. Mason,

, 157,

.

(1982). “[C]ounsel is in the best position to determine whether any potential juror

should be questioned and to what extent.” State v. Murphy,

,

(2001).

{¶33} To satisfy Strickland’s first prong, Rike must demonstrate that defense

counsel’s performance was objectively unreasonable in light of counsel’s failure to

further question or strike the juror at issue. State v. Bates,

,

,

. To establish prejudice, Rike “ ‘must show that

[a] juror was actually biased against him.’ ”

quoting State v. Mundt,

,

,

, quoting Miller v. Francis,

(6th Cir. 2001).

{¶34} Based upon a review of the entire voir dire, counsel may have

concluded that the juror simply misunderstood the question. All of the jurors,

11 OHIO FIRST DISTRICT COURT OF APPEALS

including juror Ledford, agreed that they could be fair and impartial, and that they

would follow the court’s instructions. Before and after the juror’s response, defense

counsel repeatedly explained the state’s burden of proof, and all of the jurors agreed

that the state had to prove the required culpability. Moreover, Rike cannot establish

that he was prejudiced because he has not shown that the juror was actually biased

against him, and the record does not support an actual-bias claim.

2. Reservation of Motion for Judgment of Acquittal

{¶35} At the end of the state’s case, Rike’s counsel and the prosecutor agreed

to reserve any defense motions until the end of trial. At the close of trial, defense

counsel moved for an acquittal pursuant to Crim.R. 29(A), and the trial court treated

the motion as if it had been made at the close of the state’s case. The court overruled

the motion.

{¶36} Crim.R. 29(A) states that “[t]he court may not reserve ruling on a

motion for judgment of acquittal made at the close of the state’s case.” Generally, a

trial court’s failure to immediately rule on a Crim.R. 29(A) motion for an acquittal is

reviewed for harmless error. State v. Martauz, 7th Dist. Mahoning No. 08-MA-177,

, ¶ 42. The error is harmless if, at the time the motion for an

acquittal was made, the existing evidence was sufficient to sustain the conviction.

See State v. Abu-Enjeela, 7th Dist. Mahoning No. 11 MA 102,

.

{¶37} In a challenge to the sufficiency of the evidence, the question is

whether, after viewing the evidence in the light most favorable to the state, any

rational trier of fact could have found all the essential elements of the crime proved

beyond a reasonable doubt. State v. Jenks,

,

(1991), paragraph two of the syllabus.

12 OHIO FIRST DISTRICT COURT OF APPEALS

{¶38} Rike contends that the state failed to prove that he had a specific intent

to kill. A person acts purposefully when he specifically intends to cause a certain

result. See State v. Phillips, 1st Dist. Hamilton Nos. C-150376 and C-150378, 2016-

Ohio-4672, ¶ 16; R.C. 2901.22(A). A defendant’s intent may be inferred from all the

surrounding facts and circumstances of the crime. See State v. Were, 1st Dist.

Hamilton No. C-030485,

, quoting State v. Herring,

,

(2002). “[I]n an attempted-murder prosecution, a

defendant’s specific intent to kill another can be inferred from the defendant’s

shooting in the victim’s direction” and is strongly corroborative of criminal purpose.

State v. MacDonald, 1st Dist. Hamilton No. C-180310,

.

{¶39} In this case, the state presented ample testimony that Rike rolled down

his window as the Jarvis car approached, extended his arm out of the window,

pointed his gun at the Jarvis vehicle, and fired his weapon. Sergeant Lind testified

that Rike’s firearm had a long trigger pull and would require a conscious effort to

fire. Jeschke testified that Rike’s firearm was difficult to fire because it had a five-to-

ten pound trigger pull. Thus, the evidence was sufficient to infer Rike’s specific

intent because he fired the gun in the direction of the persons in the Jarvis vehicle.

Therefore, Rike cannot establish that he was prejudiced by counsel’s agreement to

reserve the ruling on the motion.

3. Failure to Request an Instruction on Accident

{¶40} Rike next argues that his counsel was ineffective for failing to request a

jury instruction on accident and did not object to the absence of the instruction.

{¶41} A trial court has broad discretion to decide how to fashion jury

instructions, however, a trial court must give all instructions that are relevant and

13 OHIO FIRST DISTRICT COURT OF APPEALS

necessary for the jury to weigh the evidence and discharge its duty as the factfinder.

See State v. Joy,

, 181,

(1995). “Accident is an

unintentional act that denies a culpable mental state.” State v. Skeens, 7th Dist.

Noble No. 286,

, *3 (Dec. 19, 2001). A party is entitled to an

accident instruction when there is evidence presented at trial that the party acted

lawfully, and the result was unintended. See State v. Ross,

,

(12th Dist. 1999).

{¶42} A trial court errs by failing to provide a jury instruction on the accident

defense when the facts of a case warrant such an instruction. See State v. Smiley,

8th Dist. Cuyahoga No. 03853,

, ¶ 16. “ ‘[I]f [, however,] the trial

court’s general charge was otherwise correct, it is doubtful that this error of omission

would ever satisfy the test for plain error or ineffective assistance of counsel.’ ”

quoting State v. Stubblefield, 1st Dist. Hamilton No. C-890597,

(Feb.

13, 1991), citing State v. Sims,

,

(8th

Dist. 1982). “This is so ‘[b]ecause the accident defense is not an excuse or

justification for the admitted act,’ and the effect of such an instruction ‘would simply

* * * remind the jury that the defendant presented evidence to negate the requisite

mental element,’ such as purpose. In this regard, ‘[i]f the jury had credited [the

defendant’s] argument, it would have been required to find [the defendant] not guilty

* * * pursuant to the court’s general instructions.’ ” (Internal citations omitted.)

quoting State v. Johnson, 10th Dist. Franklin No. 06AP-878,

.

{¶43} Here, the record reflects that the trial judge properly instructed the

jury that the state bore the burden of proof beyond a reasonable doubt on every

essential element of the offense, including the “purposely” mens rea element of

14 OHIO FIRST DISTRICT COURT OF APPEALS

murder. By finding that Rike acted purposely, the jury concluded that his conduct

was not an accident. Had the jury believed that Rike accidentally fired the gun, then

it would have returned a not-guilty verdict. Therefore, Rike cannot establish that he

was prejudiced by counsel’s failure to request an accident instruction. See id. at ¶ 19

(explaining that “if the jury had believed Smiley’s accident defense, it would have

been required to find her not guilty in accord with the court’s instructions as given,

and hence, we find that Smiley was not prejudiced by counsel’s failure to request an

accident instruction.”).

4. Failure to Object to the Prosecutor’s Closing Argument

{¶44} Finally, Rike contends that his counsel was ineffective for failing to

object to the prosecutor’s closing remarks conceding that the state failed to prove a

specific intent to kill, and telling the jurors that they could “solely rely upon the

foreseeability that this conduct could cause death.” He further alleges that the

remarks were a misstatement of the law. However, that is a mischaracterization of

the prosecutor’s statements. The prosecutor reiterated that the jurors were required

to find specific intent and explained that the purpose to act is known only to that

person unless he expressed it to others. The prosecutor further explained that

purpose is determined from the facts and circumstances, and that the jurors may

infer the purpose from the surrounding circumstances, and repeatedly stated that the

jurors were required to find specific intent in order to find Rike guilty.

{¶45} Because the prosecutor’s remarks were not a misstatement of the law,

defense counsel had no reasonable basis to object to the remarks. Therefore, Rike

failed to demonstrate that his counsel was ineffective.

{¶46} Accordingly, we overrule the second assignment of error.

15 OHIO FIRST DISTRICT COURT OF APPEALS

Prosecutorial Misconduct

{¶47} In his third assignment of error, Rike argues that the prosecutorial

misconduct during closing arguments deprived him of his constitutional rights to

due process and a fair trial. As previously discussed, the prosecutor’s remarks were

not a misstatement of the law and were not improper. We overrule the third

assignment of error.

Omission of an Accident Instruction

{¶48} In his fourth assignment of error, Rike argues that the trial court

committed plain error by omitting an instruction on accident. “Under the plain-

error standard, we will not reverse a conviction unless, but for the error, the outcome

clearly would have been different.” State v. Smith,

,

(1st Dist.).

{¶49} We have previously determined under the second assignment of error

that the trial court properly instructed the jury that the state bore the burden of proof

beyond a reasonable doubt on every element, including the “purposely” mens rea

element of murder. Therefore, an accident instruction would not have affected the

outcome of the trial, and the court did not commit plain error. See Johnson, 10th

Dist. Franklin No. 06AP-878,

. The fourth assignment of

error is overruled.

Sufficiency and Manifest Weight

{¶50} In his fifth assignment of error, Rike contends that his convictions were not supported by sufficient evidence and were against the manifest weight of

the evidence because the state failed to prove the requisite mens rea. We note that

the assignment of error is moot with respect to improperly handling firearms in a

motor vehicle because we have vacated that conviction. Because we have previously

16 OHIO FIRST DISTRICT COURT OF APPEALS

concluded that the attempted-murder conviction was based on sufficient evidence

while addressing Rike’s claim that his counsel was ineffective for failing to request an

accident instruction, we will limit our analysis to whether the conviction was against

the manifest weight of the evidence.

{¶51} When considering a challenge to the weight of the evidence, the court

must review the entire record, weigh the evidence and all reasonable inferences,

consider the credibility of the witnesses, and determine whether, in resolving

conflicts in the evidence, the trier of fact clearly lost its way and created a manifest

miscarriage of justice. State v. Thompkins,

,

(1997), quoting State v. Martin,

,

(1st Dist. 1983).

{¶52} Rike basically argues that the jurors should have believed his

testimony that the shooting was accidental. Both Gracey and Allyn testified that Rike

rolled down his window, pointed the gun at the car, and fired. Rike admitted that he

pointed a loaded gun out of the window with his finger on the trigger. Although, he

denied that he had purposefully fired the gun, issues of witness credibility are for the

trier of fact to resolve, and we cannot conclude that the factfinder lost its way and

created a manifest miscarriage of justice. See State v. Issa,

,

(2001).

The Violent Offender Registry

{¶53} In his eighth assignment of error, Rike contends that the violent offender registration (“VOR”) scheme set forth in R.C. 2903.41 through 2903.44 is

unconstitutional as it violates Article II, Section 28 of the Ohio Constitution, which

17 OHIO FIRST DISTRICT COURT OF APPEALS

prohibits retroactive laws.1 Specifically, he contends that the violent-offender

statutes are unconstitutionally retroactive as they are punitive, rather than remedial

in nature, and became effective after Rike committed his offense.

{¶54} Under R.C. 2903.41(A)(1), a “violent offender” is a “[a] person who on

or after the effective date” of the statute is convicted of or pleads guilty to aggravated

murder, murder, voluntary manslaughter, kidnapping, abduction as a second-degree

felony, or is convicted or pleads guilty to any attempt to commit, conspiracy to

commit, or complicity in committing any of the previously identified offenses. R.C.

2903.41(A)(1)(a) and (b). The statute applies to “[a] person who on the effective date

of this section has been convicted of or pleaded guilty to an offense listed in division

(A)(1) of this section and is confined in a jail, workhouse, state correctional

institution, or other institution, serving a prison term, term of imprisonment, or

other term of confinement for the offense.” R.C. 2903.41(A)(2).

{¶55} R.C. 2903.42(A)(1) contains a presumption that each person classified as a violent offender “shall be required to enroll in the violent offender database with

respect to the offense that so classifies the person and shall have all violent offender

database duties with respect to that offense for ten years after the offender initially

enrolls in the database.” The presumption may be rebutted if the person was not the

principal offender in the commission of the offense. R.C. 2903.42(A)(1).

{¶56} Similar to the sex-offender registry, an offender must enroll personally with the sheriff of the county in which he or she resides. R.C. 2903.43(B). The

offender must provide a full name and any alias, residence address, employer

1 The Ohio Supreme Court certified a conflict on July 1, 2020, as to the following issue: “Whether Ohio’s Sub.S.B. No. 231, ‘Sierah’s Law,’ R.C. 2903.42 et seq., creating a violent offender database, which became effective March 20, 2019, violates Section 28, Article II of the Ohio Constitution, Ohio’s constitutional prohibition on retroactive statutes, when retroactively applied to an offense that occurred before March 20, 2019.” See State v. Jarvis,

,

,

.

18 OHIO FIRST DISTRICT COURT OF APPEALS

address, name and address of any school the offender is attending, license plate of

each car owned or driven, description of any scars or tattoos, or other distinguishing

marks, fingerprints, palm prints, and a photograph. R.C. 2903.43(C)(2). The

offender must reenroll annually, in person, for ten years. R.C. 2903.43(D)(1). At the

annual reenrollment, the offender must update any information that has changed

since the prior enrollment.

However, if there is a change of address, the offender

must notify the sheriff in person within three business days. R.C. 2903.43(E).

{¶57} The database is not a public record and is available to federal, state, and local law enforcement officers. R.C. 2903.43(F)(2). However, the records are

open to inspection by the public with the exception of the social security number, any

driver’s or commercial license number, or state identification number. R.C.

2903.43(F)(3)(a). An offender who recklessly fails to enroll, re-enroll, or notify the

sheriff of a change of address is guilty of a felony of the fifth degree. R.C.

2903.43(I)(1) and (2).

{¶58} Article II, Section 28 of the Ohio Constitution provides that “[t]he general assembly shall have no power to pass retroactive laws * * *.” Determining

whether a statute’s retroactive application violates the Retroactivity Clause involves a

two-step analysis. Hyle v. Porter,

,

,

, ¶ 7-9. First, a court must determine whether the General Assembly expressly

indicated its intent that the statute apply retroactively. State v. Williams,

,

,

. If so, the second step is to

determine whether the statute is remedial or substantive. Hyle at ¶ 8.

{¶59} Because the legislature expressed its intent to apply the statute retroactively, we proceed to the second step. State v. Jarvis,

, ___

N.E.3d ___, ¶ 20 (5th Dist.); State v. Hubbard,

,

(12th Dist.).

{¶60} “A purely remedial statute does not violate Section 28, Article II of the

19 OHIO FIRST DISTRICT COURT OF APPEALS

Ohio Constitution, even if applied retroactively.” State v. Cook,

,

(1998). “A statute is ‘substantive’ if it impairs or takes away

vested rights, affects an accrued substantive right, imposes new or additional

burdens, duties, obligations, or liabilities as to a past transaction, or creates a new

right. Conversely, remedial laws are those affecting only the remedy provided, and

include laws that merely substitute a new or more appropriate remedy for the

enforcement of an existing right.” (Internal citation omitted.)

“Repeatedly, the

[Supreme C]ourt has held that the commission of a felony is not a past transaction

creating a reasonable expectation of finality: Except with regard to constitutional

protections against ex post facto laws * * *, felons have no reasonable right to expect

that their conduct will never thereafter be made the subject of legislation.” (Internal

quotations and citations omitted.) State v. Caldwell,

,

, ¶ 22 (1st Dist.) (discussing similar language in the arson-offender-registration

statutes).

{¶61} The Ohio Supreme Court has previously found that the sex-offender- registration scheme was remedial. See

; State v. Ferguson,

,

,

. However, in State v. Williams, the court

found that the amendments contained in the Adam Walsh Act (“AWA”) had become

so punitive in nature that the scheme could not constitutionally be applied

retroactively. State v. Williams,

,

,

. This conclusion was based upon the elimination of judicial

classification, the more onerous and frequent registration requirements, the

requirement to register in person and in several different places, the increased

duration of the registration duties, and the fact that the requirements are based

solely on the offense of conviction.

{¶62} However, the violent-offender-registration duties are far less onerous than the requirements of the AWA. First, the duty is imposed for ten years as

20 OHIO FIRST DISTRICT COURT OF APPEALS

opposed to the AWA’s 15-year, 25-year, or lifetime duty. Second, the offender is

required to register once a year, with the sheriff where the offender resides. Unlike

the sex-offender registry, the information is not disseminated online and is only

available for inspection by the public. And violent offenders are not subject to

residency restrictions. Finally, a failure-to-register offense imposes a recklessness

standard as opposed to the strict-liability standard in the AWA, and any failure

results in a low-level felony. Therefore, the provisions are “not so punitive that they

impose a new burden in the constitutional sense, as contemplated by Williams[,]”

and, instead, are remedial in nature. Hubbard,

,

. We overrule the eighth assignment of error.

Conclusion

{¶63} We sustain the first assignment of error, vacate the conviction for

improperly handling firearms in a motor vehicle, and remand the cause for further

proceedings consistent with this opinion. We overrule the second, third, fourth,

fifth, and eighth assignments of error. Our disposition of the first assignment of

error renders the sixth assignment of error challenging the multiple sentences and

the seventh assignment of error challenging the imposition of consecutive sentences

moot. The trial court’s judgment is affirmed in all other respects.

Judgment affirmed in part, reversed in part, and cause remanded.

MYERS and CROUSE, JJ., concur.

Please note: The court has recorded its own entry this date.

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