[Cite as State v. Hodgkin, 2019-Ohio-1686.]
IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO
STATE OF OHIO, : APPEAL NO. C-170689
TRIAL NO. C-17CRB-14828
Plaintiff-Appellee, :
vs. : O P I N I O N.
JOHN R. HODGKIN, :
Defendant-Appellant. :
Criminal Appeal From: Hamilton County Municipal Court
Judgment Appealed From Is: Affirmed and Cause Remanded
Date of Judgment Entry on Appeal: May 3, 2019
Joseph T. Deters, Hamilton County Prosecuting Attorney, and Paula E. Adams,
Assistant Prosecuting Attorney, for Plaintiff-Appellee,
Rubenstein & Thurman, L.P.A., and Scott A. Rubenstein, for Defendant-Appellant.
OHIO FIRST DISTRICT COURT OF APPEALS
ZAYAS, Judge.
{¶1} Following a bench trial, defendant-appellant John R. Hodgkin was
found guilty of sexual imposition, in violation of R.C. 2907.06(A)(1), and unlawful
restraint, in violation of R.C. 2905.03(A), both third-degree misdemeanors. Prior to
sentencing, Hodgkin challenged the constitutionality of the R.C. Chapter 2950 sex-
offender-registration statutes as applied to him. The trial court rejected his
constitutional challenges, sentenced him, and classified him as a Tier I sex offender
under Ohio’s version of the Adam Walsh Act, requiring him to register annually for
15 years. Hodgkin has appealed. We affirm Hodgkin’s convictions and his Tier I
classification, but we remand this cause for the trial court to properly notify Hodgkin
of his sex-offender registration and verification duties.
{¶2} Hodgkin raises three assignments of error for our review, which we
will address in reverse order. Hodgkin’s third assignment of error alleges that his
convictions were based on insufficient evidence and against the manifest weight of
the evidence.
{¶3} When reviewing Hodgkin’s claim that his convictions were based on
insufficient evidence, we must review the evidence in the light most favorable to the
prosecution and determine whether any rational trier of fact could have found that
all the elements of the crimes had been proven beyond a reasonable doubt. See State
v. Thompkins, 78 Ohio St.3d 380, 386, 678 N.E.2d 541 (1997). In reviewing his
claims that his convictions were against the manifest weight of the evidence, we
weigh the evidence and all reasonable inferences, and consider the credibility of the
witnesses, to determine whether the trier of fact clearly lost its way and created such
a manifest miscarriage of justice that the convictions must be reversed. Id. at 387;
State v. Martin, 20 Ohio App.3d 172, 175, 485 N.E.2d 717 (1st Dist.1983). Issues
concerning the weight to be given the evidence and the credibility of the witnesses
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are primarily for the trier of fact. State v. DeHass, 10 Ohio St.2d 230, 227 N.E.2d
212 (1967), paragraph one of the syllabus; State v. Jeffries, 2018-Ohio-2160, 112
N.E.3d 417, ¶ 64 (1st Dist.).
{¶4} Hodgkin was convicted of sexual imposition, in violation of R.C.
2907.06(A)(1). R.C. 2907.06(A)(1) provides
No person shall have sexual contact with another, not the spouse of the
offender; cause another, not the spouse of the offender, to have sexual
contact with the offender; or cause two or more other persons to have
sexual contact when any of the following applies:
(1) The offender knows that the sexual contact is offensive to the
other person, or one of the other persons, or is reckless in that
regard.
“ ‘Sexual contact’ means any touching of an erogenous zone of another, including
without limitation the thigh, genitals, buttock, pubic region, or, if the person is a
female, a breast, for the purpose of sexually arousing or gratifying either person.”
R.C. 2907.01(B).
{¶5} Hodgkin was also convicted of unlawful restraint, in violation of R.C.
2905.03(A), which states, “No person, without privilege to do so, shall knowingly
restrain another of the other person’s liberty.”
{¶6} The evidence presented at trial showed that Hodgkin was a Metro bus
driver. On March 13, 2017, the 17-year-old victim boarded Hodgkin’s bus to get to
her job. The victim and her friends previously had ridden with Hodgkin and had
“play fought” with him. The victim testified that she called her cousin because
Hodgkin was making her uncomfortable by looking at her in the rear-view mirror.
Eventually, all of the other passengers got off of the bus, and the victim was left alone
on the bus with Hodgkin.
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OHIO FIRST DISTRICT COURT OF APPEALS
{¶7} Hodgkin pulled the bus over so that he could take a cigarette break.
The victim testified that she told him she was going to be late for work, but Hodgkin
said that they were early. After he finished his cigarette, Hodgkin asked the victim,
“You don’t want to play today?” The victim answered, “No.” Hodgkin then began to
tickle the victim. Initially, the victim was flat on her back, but she then “ended up on
the floor on the other side of the bench of the seats.” Hodgkin continued to tickle the
victim. He touched her stomach, neck, chest and inner thighs. He got on top of the
victim and would not let her up, even after the victim told him to stop and get off of
her. Hodgkin slapped the victim’s buttocks. He did not get up off of the victim until
she told him he was “the man.” Hodgkin then drove the victim to her stop, but he
would not open the bus door until the victim gave him her name and number. The
victim gave Hodgkin a fake name and number, and he opened the bus door. The
victim told her boss and then a teacher what had happened. A Metro bus camera
recorded the incident.
{¶8} While Hodgkin does not make any specific argument regarding his
unlawful-restraint conviction, we hold that there is sufficient evidence in the record
to support it. Hodgkin got on top of the victim and refused to let her up, even when
she told him to get off of her. He also refused to open the bus door so that the victim
could leave the bus. We hold that the trial court did not lose its way in convicting
Hodgkin of unlawful restraint.
{¶9} Regarding his sexual-imposition conviction, Hodgkin contends that
the sexual-contact element of sexual imposition was not supported by sufficient
evidence. He concedes that he touched the victim on her buttocks, chest, and inner
thigh, erogenous zones listed in the R.C. 2907.01(B) definition of sexual contact. But
Hodgkin argues that the evidence was insufficient to support an inference that the
purpose of his actions was sexual gratification or arousal. Hodgkin argues that the
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OHIO FIRST DISTRICT COURT OF APPEALS
evidence supports an inference that all he wanted to do was “play fight” with the
victim, and that his actions were no more than an innocent attempt at “horseplay.”
{¶10} In State v. Mack, 1st Dist. Hamilton No. C-050968, 2006-Ohio-6284,
¶ 9, this court stated,
The Ohio Revised Code does not define sexual arousal or gratification.
But the statutes contemplate any touching of the specified areas that a
reasonable person would perceive as sexually stimulating or gratifying.
Whether a touching is for the purpose of sexual gratification or arousal
is “a question of fact to be inferred from the type, nature, and
circumstances surrounding the contact.” While touching by itself is
not sufficient for a conviction, the act of touching may constitute
strong evidence of intent.
(Internal citations omitted.)
{¶11} The Ninth Appellate District discussed the factfinder’s role in
determining whether the touching was for the purpose of sexual gratification or
arousal in State v. Cobb, 81 Ohio App.3d 179, 610 N.E.2d 1009 (9th Dist.1991),
stating,
Thus, the proper method is to permit the trier of fact to infer from the
evidence presented at trial whether the purpose of the defendant was
sexual arousal or gratification by his contact with those areas of the
body described in R.C. 2907.01. In making its decision the trier of fact
may consider the type, nature and circumstances of the contact, along
with the personality of the defendant. From these facts, the trier of
facts may infer what the defendant’s motivation was in making the
physical contact with the victim. If the trier of fact determines[] that
the defendant was motivated by desires of sexual arousal or
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OHIO FIRST DISTRICT COURT OF APPEALS
gratification, and that the contact occurred, then the trier of fact may
conclude that the object of the defendant’s motivation was achieved.
Cobb at 185; see In re Anderson, 116 Ohio App.3d 441, 444, 688 N.E.2d 545 (12th
Dist.1996).
{¶12} In this case, Hodgkin was looking at the 17-year-old victim in the rear-
view mirror in a way that made her uncomfortable. He touched the victim on her
chest and inner thigh while “tickling” her. He also slapped her on the buttocks.
Hodgkin got on top of the victim and refused to get off of her until she called him
“the man.” He then refused to allow her to leave the bus until she had given him her
“name and number.” The evidence belies Hodgkin’s contention that he was merely
engaging in “horseplay” with the victim.
{¶13} We hold that the evidence supported the inference that Hodgkin had
touched the victim for the purpose of sexual gratification or arousal. A rational trier
of fact, after viewing the evidence in the light most favorable to the prosecution,
could have found that the state had proved all the elements of sexual imposition
beyond a reasonable doubt. Further, after reviewing all the evidence, we cannot say
that the trial court clearly lost its way and created such a manifest miscarriage of
justice that we must reverse Hodgkin’s conviction for sexual imposition and order a
new trial. The third assignment of error is overruled.
{¶14} Hodgkin’s second assignment of error assets that R.C. Chapter 2950’s
sex-offender-registration statutes are unconstitutional as applied to him because
requiring him to register as a Tier I sex offender constitutes cruel and unusual
punishment in violation of the Eighth Amendment to the United States Constitution
and Article I, Section 9, of the Ohio Constitution. Hodgkin contends that his
mandatory classification as a Tier I sex offender, which requires him to register for 15
years and to annually verify his address, is grossly disproportionate to the nature of
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OHIO FIRST DISTRICT COURT OF APPEALS
the sexual-imposition offense and his character, which has the effect of shocking the
community’s sense of justice and, therefore, constitutes cruel and unusual
punishment. He argues that the relative seriousness of the offense, a third-degree
misdemeanor, and his lack of prior sex offenses render the burden of Tier I
registration and verification requirements so disproportionate as to shock the sense
of justice in the community or to shock a reasonable person.
{¶15} In State v. Bradley, 1st Dist. Hamilton No. C-100833, 2011-Ohio-
6266, this court held that the imposition of Tier II registration requirements for a
conviction of unlawful sexual conduct with a minor did not constitute cruel and
unusual punishment. We stated,
In determining whether a punishment is “cruel and unusual,”
reviewing courts must give substantial deference to the “broad
authority” that the legislature has to determine the “types and limits of
punishments for crimes.” Generally, punishments that fall within the
terms of a valid statute are not cruel and unusual. The question is
whether, after deferring to the legislature’s authority to define offenses
and set the punishment for them, and after giving the legislature’s
determination the presumption of constitutionality to which it is
entitled, the reviewing court can say that the penalty that the
legislature has deemed appropriate is so disproportionate to the crime
as to shock any reasonable person and the community’s sense of
justice.
(Internal citations omitted.) Bradley at ¶ 10.
{¶16} Bradley was cited by the Ohio Supreme Court in State v. Blankenship,
145 Ohio St.3d 221, 2015-Ohio-4624, 48 N.E.3d 516. In Blankenship, the Supreme
Court held, in a plurality opinion, that the imposition of Tier II sex-offender
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OHIO FIRST DISTRICT COURT OF APPEALS
registration requirements for fourth-degree-felony unlawful sexual conduct with a
minor was not so extreme as to be grossly disproportionate to the crime or shocking
to a reasonable person, and therefore, did not constitute cruel and unusual
punishment.
{¶17} The Blankenship court stated that “reviewing courts should grant
substantial deference to the broad authority that legislatures possess in determining
the types and limits of punishments for crimes.” Id. at ¶ 36, quoting State v.
Weitbrecht, 86 Ohio St.3d 368, 373, 715 N.E.2d 167 (1999). Further, the court noted
that “[t]he General Assembly has seen fit to impose registration sanctions in cases
involving sex offenses to protect the public,” and that the wisdom of such legislation
was for the legislature to decide. Blankenship at ¶ 36 and 37.
{¶18} In determining the as-applied constitutionality of a penal statute, the
court must consider the following: “(1) the culpability of the offender in light of his
crime and characteristics; (2) the severity of the punishment; and (3) the penological
justification.” Blankenship at ¶ 22, citing Graham v. Florida, 560 U.S. 48, 67, 130
S.Ct. 2011, 176 L.Ed.2d 825 (2010).
{¶19} In regards to Hodgkin’s culpability, as the Blankenship court
recognized that “the legislature has chosen to draw the line” by acknowledging the
special culpability of adults who commit certain sexually-oriented offenses, including
sexual imposition, and that these offenders are “deemed more culpable and
deserving of punishment.” Blankenship at ¶ 24. Hodgkin’s victim was a 17-year-old
girl that he held down and continued to touch, even when she told him to stop. We
conclude, based on the record, that Hodgkin was more culpable and deserving of
punishment. See id. at ¶ 24.
{¶20} Regarding the severity of Hodgkin’s registration requirements, as a
Tier I sex offender he was required to register for 15 years and to annually verify his
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address. This registration period is less severe than the 25-year registration
requirement approved by the Supreme Court in Blankenship. “Since the Court in
Blankenship determined that a registration period that is nearly twice as long as the
one imposed here is permissible under the Eighth Amendment, we can discern no
reason to conclude that [Hodgkin’s] 15-year registration period is so severe as to
reach the level of unconstitutionality.” State v. Conley, 9th Dist. Summit No. 27869,
2016-Ohio-5310, ¶ 13; see State v. Heiney 6th Dist. Lucas No. L-16-1042, 2018-Ohio-
3408, ¶ 178.
{¶21} Finally, regarding the penological justification for Hodgkin’s
registration requirements, the Blankenship court noted that “the penological
grounds for imposing such requirements are still accepted in many quarters and are
justified in part based upon the perceived high rate of recidivism and resistance to
treatment among sex offenders.” Blankenship at ¶ 30. The imposition of a
registration period satisfies “the penological aim of reducing recidivism among sex
offenders.” Conley at ¶ 14, citing Blankenship.
{¶22} Ohio courts have rejected cruel-and-unusual-as-applied challenges to
R.C. Chapter 2950’s tier-classification system. See Heiney (the imposition of Tier I
registration and verification requirements for gross sexual imposition does not
constitute cruel and unusual punishment); Conley (Tier I registration and
verification requirements are not cruel and unusual punishment for third-degree-
misdemeanor voyeurism); State v. Fisher, 4th Dist. Ross No. 16CA3553, 2017-Ohio-
7260 (imposing Tier III registration and verification requirements for sexual battery
does not constitute cruel and unusual punishment).
{¶23} We hold that the Tier I sex-offender registration and verification
requirements imposed upon Hodgkin are not so extreme as to be grossly
disproportionate to his sexual-imposition crime or shocking to a reasonable person
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or to the community’s sense of justice; therefore, they are not unconstitutional as
applied to Hodgkin. The second assignment of error is overruled.
{¶24} For his first assignment of error, Hodgkin contends, and the state
concedes, that the trial court failed to properly notify him of his registration and
verification duties as a Tier I sex offender. The trial court did not orally notify
Hodgkin of his registration requirements, and there is no notification form in the
record. Therefore, this cause must be remanded so that the trial court may properly
notify Hodgkin of his registration and verification requirements pursuant to R.C.
2950.03. The first assignment of error is sustained.
{¶25} The judgment of the trial court is affirmed. The cause is remanded for
the trial court to properly notify Hodgkin of his registration and verification duties
pursuant to R.C. 2950.03.
Judgment affirmed and cause remanded.
MOCK, P.J., and MYERS, J., concur.
Please note:
The court has recorded its own entry this date.
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