Youngstown Daily Legal News

Those convicted of sexual imposition not always classified as sex offenders, Supreme Court determines

JESSICA SHAMBAUGH
Special to the Legal News
Published: December 13, 2012

The Supreme Court of Ohio ruled this week that a person convicted of a sexually oriented offense is not classified as a sex offender with a duty to register as such if the offense in question involved consensual conduct.

The 6-1 majority sustained Kyle Raber’s argument that he could not be classified as a Tier I sex offender more than a year after a final judgment was entered without a sexual offender classification, implying that the trial court found the involved behavior was consensual.

“The court therefore lacked authority to reopen its sentencing to reconsider its prior judgment or to find the sexual activity to be nonconsensual and classify Raber as a Tier I sex offender more than a year after it had imposed its original sentence,” Ohio Supreme Court Justice Terrence O’Donnell wrote for the court.

In a separate opinion, Chief Justice Maureen O’Connor dissented from the majority.

“As a matter of law, the sexually-oriented offense for which Kyle Raber was convicted was nonconsensual,” O’Connor stated.

Case summary states that Raber was 18 years old in February 2008 and involved in a consensual sexual relationship with his 18-year-old girlfriend. The girl eventually denied some of Raber’s sexual requests, but he allegedly proceeded without her permission.

He was indicted in Wayne County in April 2008 for sexual battery, but eventually pleaded guilty to an amended count of sexual imposition. At sentencing, it was clarified that under the Ohio Revised Code a sexual offender status with registration requirements is applicable only if the offense involve nonconsensual activity or a minor.

The parties disagreed about the consensual nature of the sexual activity between Raber and his former girlfriend and the only evidence presented was hearsay statements from the girlfriend. After taking the matter under advisement, the trial court sentenced Raber to 60 days in jail, a $500 fine, and two years of community control.

“Significantly, the court did not classify Raber as a sex offender and did not provide him with notice of a duty to register as a sex offender,” O’Donnell stated.

Several months after entering its judgment, the trial court scheduled another hearing. At that hearing it determined the conduct. More than a year after its original judgment, the court classified Raber as a Tier I sex offender with registration responsibilities.

Raber appealed the decision and the 9th District Court of Appeals affirmed.

On appeal to the high court, Raber claimed the trial court “lacked jurisdiction to modify his conviction and sentence” because the state did not appeal the court’s final judgment.

The state countered by arguing that the omission in the original judgment was a clerical error and that Raber agreed to delay any determination regarding his classification as a sex offender.

“Accordingly, the issue becomes whether the trial court had authority to classify Raber as a sex offender 14 months after entering its judgment of conviction,” O’Donnell wrote.

On review, the justices found that a trial court must notify a sex offender of their duty to register at sentencing and that a person who commits a sexually oriented offense is not always classified as a sex offender.

The majority found that the state failed to show a lack of consent in Raber’s offense.

“The court thereafter entered a judgment of conviction without finding Raber to be a sex offender subject to Tier I registration and without notifying him of a duty to register, presumably on its determination that no duty existed based on the sexual activity’s being consensual,” O’Donnell continued.

Ruling that the court was not mandated to classify Raber as a sex offender and that the state failed to show a clerical error, the justices held that there was no error in the trial court’s failure to impose registration requirements. They further determined that Raber had an expectation of finality in his sentence and the court’s reopening of the case violated the Double Jeopardy Clause.

“The trial court lacked authority to reopen this case to reconsider the final judgment it had entered, and the protections against double jeopardy barred it from classifying Raber as a Tier I sex offender more than a year after it imposed sentence. Accordingly, the judgment of the court of appeals is reversed,” O’Donnell stated.

O’Connor stated that it was factually not possible for Raber to be convicted of sexual imposition without also fulfilling the definition of a sex offender and that it was legally required for the court to classify him and issue registration requirements.

“The trial court ultimately did what was required by law: impose registration. We should affirm,” she wrote.

Attempts to contact Raber’s attorney, David Eager of Wooster, and Jason Desiderio for the state were unsuccessful prior to press deadline.

The case is cited State v. Raber, case No. 2012-Ohio-5636.

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