State v. Llewellyn

2021-Ohio-2396

STATE OF OHIO Plaintiff-Appellee v. RYAN LLEWELLYN Defendant-Appellant

No. 19CA000034

Court of Appeals of Ohio, Fifth District, Knox

July 14, 2021

Appeal from the Court of Common Pleas, Case No. 2019CR02-0049

JUDGMENT Affirmed in Part and Reversed in Part

For Plaintiff-Appellee Charles T. McConville Nicole E. Derr

For Defendant-Appellant John S. Pyle Knox County Public Defender

Hon William B. Hoffman, P.J. Hon. Craig Baldwin, J. Hon. Earle E Wise, Jr., J.

OPINION

WISE EARLE, J.

{¶ 1} Defendant-Appellant Ryan Llewellyn appeals his conviction and sentence from the Knox County Court of Common Pleas. Plaintiff-Appellee is the state of Ohio.

FACTS AND PROCEURAL HISTORY

{¶ 2} On April 6, 2015, Appellant was indicted on one count of rape and one count of unlawful sexual conduct with a minor. He later entered a plea of guilty to an amended count of gross sexual imposition and in February of 2016, was sentenced to 15 months in prison. Appellant was additionally classified as a Tier I sex offender.

{¶ 3} On February 11, 2019, the Knox County Grand Jury returned an indictment charging Appellant with two counts of failure to provide change of address in violation of R.C 2950.05(F)(1), felonies of the third degree. Count one alleged a failure to update the sheriff with a change of address, and count two alleged a failure to update internet identifiers. At his February 13, 2019 arraignment, Appellant entered pleas of not guilty.

{¶ 4} On May 24, 2019, Appellant filed a Motion to Dismiss Count II on constitutional grounds, arguing that R.C. 2950.05(F)(1) was unconstitutionally vague. On June 20, 2019, the state filed a memorandum in opposition. Following a hearing, the trial court denied the motion by judgment entry filed July 1, 2019.

{¶ 5} Appellant then opted to proceed to a bench trial which was held on July 16, 2019.

{¶ 6} At trial, Lieutenant Penny Lamp of the Knox County Sheriff's Office testified she is the jail administrator and oversees sex offender registration. She testified she assisted Deputy Tony McFarland on January 29, 2019 with Appellant's registration.

{¶ 7} Appellant was homeless the day he appeared at the jail to register. Lamp testified that Deputy McFarland went through the registration with Appellant and explained to Appellant what was required of a homeless offender. She testified a homeless offender is required to call in nightly and give a detailed description of where they plan to stay. Lamp stated Appellant initialed and signed the sex offender registration form indicating he understood his duties under the same. The registration indicated Appellant's address was "homeless Mount Vernon, Ohio 43050." State's exhibit 1.

{¶ 8} Lamp testified that from January 29, 2019 to February 7, 2019, Appellant failed to call in on a nightly basis as directed.

{¶ 9} On cross-examination, Lamp admitted that there was no duty listed on the sex offender registration form for Appellant to call into the Sheriff's Department every night. On redirect, she testified the form required the registrant to include a detailed description of his or her address such as the Walmart parking lot. She testified that the Knox County Sheriff's Office required homeless registrants to call in nightly to report their location and they would not accept a statement from a registrant that he or she could be located in Mount Vernon, Ohio.

{¶ 10} Sergeant Tim Knell of the Knox County Sheriff's Office testified that he and Deputy Annette Mahon investigated Appellant's failure to report. He too testified that when a sex offender registers as homeless, they are required to call in every day and say where they will be staying for the night. If an offender fails to call in, the failure is documented. Sergeant Knell testified that on nine separate days, Appellant did not call in his location. He further testified Appellant had three Facebook accounts in his name which he had failed to list on his sex offender registration form.

{¶ 11} On cross-examination, Sergeant Knell explained he found Appellant's Facebook pages by going into Facebook and typing in appellant's name in the search bar. The Facebook accounts displayed pictures of Appellant. Knell did not try to communicate with Appellant via Facebook. Knell stated Appellant would have to have a user name and password to communicate on Facebook. He admitted that anyone could create a Facebook page in Appellant's name without Appellant's permission or knowledge.

{¶ 12} After the State rested, Appellant made a Crim.R. 29 motion to dismiss both counts, which was denied. Appellant then testified that between January 31 and February 7, 2019, he did not change any internet identifiers and that the emails that he listed as his identifiers were the same ones that had been listed in his prior sex offender registrations. He testified that he did not use Facebook anymore and had not used it since 2017 and would have had to create a whole new Facebook account to send messages.

{¶ 13} Appellant testified that he could not have used the old Facebook account because he forgot his password and to reset the password, a code would have to be sent to his wife's father's number. Appellant stated he and his wife had not been together since the first time that he went to prison. According to Appellant, his profile picture on Facebook, was from 2017 before he got his tattoos. He testified that he got his tattoos on his right forearm while in prison after March 7, 2018. The tattoos were not reflected in the Facebook picture. Appellant further testified that if he had created a new Facebook account, he would have listed a Florida address rather than Mount Vernon since he was from Florida. Appellant testified that he could not even log onto Facebook to take down the old Facebook pages.

{¶ 14} Appellant further stated he listed his residence as homeless in Mount Vernon, Ohio. He testified when he left jail on January 29, 2019, he did not have a phone as he could not afford one. He stated between January 29, 2019 and February 7, 2019, he slept one time in the pillow section at Walmart and that he stole a TV once to pay for a motel room. Appellant testified that he never stayed in one place more than two nights and no one told him that he had to call in every night. He testified that if he had been told, he would have just walked up to the jail. Appellant further stated there was nothing on the sex offender registration form which required him to call in every night.

{¶ 15} On cross-examination, Appellant testified that he was never told that he had to provide a list of where he could be found, but admitted that the registration form specified that if a residence change was not to a fixed address, he had to include a detailed description of the place or places that he intended to stay. He never listed the motel or Walmart as places where he stayed. Appellant further testified he was aware of his duty to register his Facebook accounts, but had no way to get onto Facebook.

{¶ 16} In a Judgment Entry filed on July 19, 2019, the trial court found appellant guilty of both counts. As memorialized in a Sentencing Entry filed on September 3, 2019, appellant was sentenced to 43 months incarceration.

{¶ 17} Appellant filed an appeal and the matter is now before this court for consideration. He raises six assignments of error for our consideration as follow:

I

{¶ 18} "THE EVIDENCE WAS INSUFFICIENT TO SUSTAIN A CONVIVTION (SIC) FOR A VIOLATION OF R.C. 2950.05(A) AS ALLEGED IN COUNT I."

II

{¶ 19} "THE EVIDENCE WAS INSUFFICIENT TO SUSTAIN A CONVIVTION (SIC) FOR A VIOLATION OF R.C. 2950.05(D) AS ALLEGED IN COUNT II."

III

{¶ 20} "THE APPELLANT' (SIC) CONVICTION FOR COUNT I WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE."

IV

{¶ 21} "THE APPELLANT'S CONVICTION FOR COUNT II WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE."

V

{¶ 22} "THE TRIAL COURT ERRED BY FAILING TO ADMIT THE APPELLANT'S PROFFERED EVIDENCE CONCERNING WHAT HE HAD TO DO IN ORDER TO DELETE A FACEBOOK PAGE."

VI

{¶ 23} "THE TRIAL COURT ERRED BY DENYING THE APPLLANT'S (SIC) MOTION TO DISMISS COUNT II BASED ON THE APPELLANT' (SIC) SHOWING THAT THE STATUTE UNDER WHICH HE WAS CHARGED WAS UNCONSTITUTIONALLY VAUGE (SIC)."

I, III

{¶ 24} For ease of discussion, we address some of Appellant's arguments together and out of order. In his first and third assignments of error, Appellant argues his conviction for failure to provide change of address as set forth in count one of the indictment is not supported by sufficient evidence and is against the manifest weight of the evidence. We agree.

{¶ 25} On review for sufficiency, a reviewing court is to examine the evidence at trial to determine whether such evidence, if believed, would support a conviction. State v. Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492 (1991). "The relevant inquiry is whether, after viewing the evidence in a light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt." Jenks at paragraph two of the syllabus, following Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). On review for manifest weight, a reviewing court is to examine 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 jury 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. Martin, 20 Ohio App.3d 172 175, 485 N.E.2d 717 (1st Dist.1983). See also, State v. Thompkins, 78 Ohio St.3d 380, 678 N.E.2d 541 (1997). The granting of a new trial "should be exercised only in...