[Cite as State v. Misch,

.]

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 Misch, from the

April 28, 2020 judgment of the Lucas County Court of Common Pleas, 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} Appellant sets forth the following two assignments of error:

I. Ohio’s violent offender registry is punitive and not remedial. As

a result, the trial court erred by retroactively applying the statute 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 from Duty

to Enroll in the Violent Offender Database; R.C. 2903.41, et. seq.

Procedural History

{¶ 3} On July 2, 1993, appellant was indicted on charges of aggravated 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 robbery in violation of

R.C. 2911.01(A)(2). He was convicted after a jury trial of both charges, but he was

acquitted of the specification. He was sentenced to 20 years to life for the aggravated

murder conviction, to be served concurrently with 10-25 years for the aggravated robbery

conviction. This court affirmed the convictions in State v. Misch,

,

(6th Dist. 1995).

{¶ 4} Appellant, who was released from prison on April 23, 2020, moved the

court: (1) for postconviction DNA testing; (2) for leave to file a delayed motion for a

2. 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 remains decisional. The trial

court granted the petition for postconviction DNA testing and denied the motion to be

excused from reporting as a violent offender.

{¶ 5} Appellant now seeks review of the denial of his motion to be excused from

reporting.

Facts

{¶ 6} On August 4, 1992, the body of Vernon Huggins, an African American 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 initially denied any

knowledge of the murder, detectives told him that two members of 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 directing them as to the route the

gang took the night of the murder and pointing out areas relevant 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 the Bishops gang on the

night of the murder. He stated that the group had been to a party at the house of someone

named Lisa, but that they left and, after meeting up with two more gang members,

walked to Woodward High School and then on to Wilson Park. Once there, they saw a

young African American male who appellant described as having hair that “faded up”

3. and had “poofy curls on top.” One of the gang members said, “Let’s jack this dude,”

meaning that they would rob the man. Appellant said his role was to approach the man

and ask for a cigarette or for the time, with the purpose of distracting him and slowing

him down. When appellant did so, the other gang members attacked 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 body was found in

grass near a storage building and a group of trash barrels. One 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 member of the

Bishops and had been present at another party at Lisa’s house—the 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 members were celebrating

and “energetic, happy like they really achieved something.” One member, “C.J.,” had

reddish brown spots on his arms, hands, and clothing that had not been there when he left

the house. Another member, Louie, had spots on his hands and stains 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 participated in the celebration

while they discussed the beating, and he never denied that the incident occurred.

4. {¶ 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 morning hours, talking about

a “jack move” on a n*****,” and about “who hit him and who kicked him and who * * *

tore his pocket off, who was doing the most fists, who was doing this and that * * *.”

Urbina said that they talked about how they kept beating the victim, and appellant

described how he and another gang member had asked the victim for a cigarette and for

the time, and that as he reached to check his watch, the gang hit 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, and she kept it until

turning it over to police on February 3, 1993. Michelle Parkhurst 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 caused by a

tremendous force, and that they were similar to injuries sustained by a person hit by the

type of high velocity impact that is found in train or auto accidents, as well as in beatings.

She further testified that the victim’s injuries were consistent 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 located near the body were

consistent with the victim being hit by a club. Finally, a forensic anthropologist testified

5. 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 victim died minutes after

being hit, as the result of craniocerebral injuries that were sustained in the beating.

{¶ 13} In appellant’s defense, several witnesses, including appellant’s girlfriend,

testified that appellant did not dislike African American people. His girlfriend further

testified that at the time of the murder, appellant was spending 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 time 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 original statement because it was

not true, and that detectives had told him that if he did not say 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 application of the R.C.

2943.01 violent offender registry (VOD) to appellant, based upon his more than 26-year-

old conviction, was in violation of the Ohio Constitution’s prohibition against

retroactivity. This court, in State v. Lamb, 6th Dist. Lucas No. L-19-1177,

,

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:

6. Currently pending before the Ohio Supreme Court is a certified

conflict between the Courts of Appeals for the Twelfth and Fifth Districts

on the issue whether the VOD statutes, when applied to an offense that

occurred before the statutes’ March 20, 2019 effective date, violate the

prohibition against retroactive statutes contained in Article II, Section 28,

of the Ohio Constitution. See State v. Hubbard,

,

,

(Table); State v. Jarvis,

,

,

(Table). See also State v. Rike, 1st

Dist. Hamilton No. C-190401,

(finding no retroactivity-

clause violation); State v. Jackson, 10th Dist. Franklin No. 19AP-393,

(declining to decide retroactivity-clause challenge upon

determining that the case was not ripe for decision); State v. Morgan, 2020-

Ohio-3955,

(9th Dist.) (finding no retroactivity-clause

violation). State v. Klein, 1st Dist. No. C-190619,

.

Until the Supreme Court resolves this conflict, we are inclined to

follow the position of a majority of our fellow appellate districts 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 registration

statutes and the violent-offender enrollment statutes, we find that the

7. violent-offender enrollment requirements are not so punitive that they

impose a new burden in the constitutional sense, as contemplated

in Williams. Rather, we find that the violent-offender enrollment

requirements are more akin to the arson-offender registration requirements

set forth in R.C. 2909.13, 2909.14, and 2909.15, which the First District

found were remedial in nature. See Caldwell,

,

at ¶ 33-35. Accordingly, as appellant had no expectation of finality

with regard to any duties that may or may not have attached following 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,

. The violent-

offender enrollment statutes are remedial in nature, and the General

Assembly could retroactively impose Sierah’s Law without running afoul

of Article II, Section 28 of the Ohio Constitution. State v. Hubbard, 2020-

Ohio-856, ¶ 37,

, motion to certify allowed, 2020-

Ohio-3473, ¶ 37,

,

, and appeal

allowed,

, ¶ 37,

,

. Hubbard, at Paragraph 37.”

Id. at ¶ 57-58. Employing the identical logic that was used in both 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.

8. {¶ 15} Appellant argues in his second assignment of error that the trial court erred

in denying his motion to be excused from enrolling in Ohio’s violent 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 specific 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 sentencing 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 enroll. 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 person 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 established 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.

9. Id. Appellant asserts that although the trial court correctly identified 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 applicable 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 review the matter for abuse of

discretion, consistent with the review that has been afforded in appeals from denials of

other remedies intended to alleviate the collateral consequences of a criminal conviction.

See, e.g., In re Buzzell, 6th Dist. Lucas No. L-20-1012,

(petition

for certificate of employment qualification pursuant to R.C. 2953.25); In re Chrosniak,

,

(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-Ohio-

4350, ¶ 19 (expungement pursuant to R.C. 2953.32).

{¶ 18} The abuse of discretion standard recognizes the court’s “inherent authority

and wide discretion in exercising its duty to administer proceedings.” State v.

Cunningham,

,

,

, ¶ 25 (citations

omitted). A discretionary decision “will not be disturbed absent a showing that the court

abused that discretion,” which requires a showing of “an unreasonable, arbitrary, or

unconscionable use of discretion,” or which involves a course of action “that no

conscientious judge, acting intelligently, could honestly have taken.”

(citations

omitted); and State ex rel. Wilms v. Blake,

,

(1945).

10. {¶ 19} With this standard of review in mind, we consider the lower court’s

analysis and application of the Ohio violent offender registry law. First, the trial court

properly determined, by a preponderance of the evidence, that appellant was not a

principal offender. That is, there was no evidence to suggest that appellant physically

participated in Huggins’ beating. Instead, the evidence revealed that appellant’s role was

to set up the victim for the beating that was subsequently inflicted by the principal

offenders. Because appellant was not a principal offender, the trial court properly

concluded that the presumption that appellant must enroll in the 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 undisputed 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 (ORAS-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 offense, 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 set 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 aggravated robbery.” The court

went on to state that “[w]hile [appellant] may contend that he was ‘minimally involved,’

11. 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 equivalent and an associate degree

in business administration from the University of Findlay.” In addition, the court stated

that appellant appeared “to have significant vocational training 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 (including siblings, his father,

and his stepmother) continue[d] to reside in Toledo and * * * remained in regular contact

with him.” See R.C. 2903.42(A)(4)(a)(iv).

{¶ 23} The court ended its analysis with the following observations and

conclusions:

[A]s stated previously, the jury did find, based upon all of the evidence and

arguments, that [appellant] was guilty of aggravated murder. Ultimately,

he was found to be sufficiently culpable for committing the highest offense

in our criminal justice system, and this fact is inescapable for 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 enforcement who

come in contact with individuals convicted of violent offenses. Therefore,

12. despite some factors meriting in Defendant’s favor, the Court still 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 scrupulously considered

and adhered to the language of the statute in this case. The court properly reasoned that

Sierah’s Law “was for protection of the community and law enforcement who come in

contact with individuals convicted of violent offenses.” Although the court recognized

that certain factors weighed in favor of excusing the duty to register, the court obviously

viewed those factors as outweighed by the concern for public safety. The trial court’s

conclusion that the interest of public safety warranted a registry period does not render

the court’s decision an abuse of discretion, nor does it suggest that the court “recognized,

then ultimately ignored” the statutory requirements.

{¶ 25} In

the Supreme Court of Ohio observed that the trial

court did not abuse its discretion when it “did not act arbitrarily or otherwise ignore the

language of the statute.” Cunningham,

,

,

, 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 trial 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 General Assembly’s clear

intent” and, further, “deprives the court of its discretion,” to the extent that it requires that

“any person convicted of aggravated murder must enroll in the violent offender

13. 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 recognized that the conviction—not

just for aggravated murder, but also for aggravated robbery—came not just from a plea,

for example, but from a full trial, where evidence and arguments were presented for both

sides. In addition, a review of the facts in this case, as gleaned from the evidence, makes

clear that the crime for which appellant was convicted was extremely brutal and, further,

quite possibly was racially motivated.

{¶ 27} For all of the foregoing reasons, appellant’s second assignment of 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 pursuant to App.R. 27. See also 6th Dist.Loc.App.R. 4.

14. 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 Court of Ohio’s Reporter of Decisions. Parties interested in viewing the final reported version are advised to visit the Ohio Supreme Court’s web site at: http://www.supremecourt.ohio.gov/ROD/docs/.

15.