COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 71995 STATE OF OHIO ) ) Plaintiff-Appellee ) JOURNAL ENTRY ) -VS- ) AND ) LASHAWN MOORE ) aka DANIEL LESEAN MOORE ) OPINION ) Defendant-Appellant ) Date of Announcement of Decision: FEBRUARY 19, 1998 Character of Proceeding: Criminal appeal from Court of Common Pleas Case No. CR-328589 Judgment: Affirmed in part; reversed in part. Date of Journalization: Appearances: For Plaintiff-Appellee: For Defendant-Appellant: STEPHANIE TUBBS JONES JOHN P. PARKER, ESQ. Cuyahoga County Prosecutor 4403 St. Clair Avenue RONNIE DUCOFF, Assistant Cleveland, Ohio 44103 MELODY A. WHITE, Assistant Prosecuting Attorneys 1200 Ontario Street Cleveland, Ohio 44113 JAMES M. PORTER, P.J.: Defendant-appellant Lashawn Moore appeals from his conviction following a jury trial for one count of felonious assault (R.C. -2- 2903.11); one count of child endangering (R.C. 2919.22); and two counts of felonious sexual penetration (R.C. 2907.12). Defendant contends on appeal that the trial court erred in denying defendant's motion to suppress incriminating evidence; in admitting evidence of hearsay and prior bad acts; in denying defendant's motion for a new trial and finding defendant a sexual predator. Defendant also contends that evidence identifying him as the perpetrator was insufficient to sustain his conviction and the verdicts were against the manifest weight of the evidence. For the reasons hereinafter stated, we affirm in part and reverse in part. The victim was alleged to be a two year old female child for whom defendant had certain care responsibilities. In February 1995, defendant moved into the Cleveland apartment of Priscilla Hale, his girlfriend. Ms. Hale's daughter, Cierra (d.o.b. June 9, 1993) also resided there. Ms. Hale's mother, stepfather, brother and nephew resided in another apartment above them. Between February and July, 1995, Cierra was cared for by her grandmother upstairs while her mother worked full time days during the week. The grandmother testified that Cierra was never alone with any of her immediate family members, which was corroborated by those relatives. At the end of July 1995, defendant assumed the role of Cierra's care giver while her mother worked. He was the only adult male to ever care for Cierra. Cierra's biological father was not involved in her life. -3- Ms. Hale testified that by July 1995, Cierra was toilet trained and not having bladder or bowel accidents. However, while defendant watched Cierra, her mother mistakenly thought Cierra experienced accidents, because on two occasions she came home to find Cierra wearing no underwear. Defendant told Ms. Hale that Cierra had wet herself. However, Ms. Hale never saw the underwear or any other clothes that were wet or urine soaked. She also testified that Cierra's behavior had changed in that she would follow her mother around grabbing on her constantly. Ms. Hale further testified that defendant never cleaned the house when he babysat and only did laundry on one occasion, which happened to be the same day Cierra went to the hospital due to the injuries defendant was later charged with causing. Ms. Hale also observed various injuries on Cierra during the time defendant watched her. First, she noticed a burn on Cierra's leg. Defendant explained she must have been playing and fallen on a lamp. The mother later noted a big bump on Cierra's forehead. Defendant explained Cierra had slipped and fallen down the stairs while he was carrying her and a garbage bag. Ms. Hale also observed what looked like a shoe welt on Cierra's thigh. Defendant explained that he whipped Cierra for urinating in front of him. He showed her the shoe he used and stated he did not know he hit her that hard. An aunt also testified that after defendant assumed care of Cierra she observed a burn and a bruise on the child. Defendant advised the bruise came from where he had hit Cierra with a shoe -4- for going to the bathroom on herself. The aunt also observed a puffy lip on Cierra which defendant attributed to a fall at the zoo. On Friday, September 15, 1995, defendant cared for Cierra all day until her mother returned at about 5:00 p.m. Cierra did not act unusual until the next day when she vomited about noon. Ms. Hale reported that Cierra had been quiet on Saturday, September 16, 1995 when the three of them had gone to visit defendant's sister's home. After vomiting, Ms. Hale testified Cierra was not feeling well, had a fever and complained about having to use the bathroom. However, she was not able to move her bowels. Beginning Saturday night, her mother noted that Cierra's stomach was getting hard and swollen. On Sunday, Cierra remained ill and could not use the bathroom. Ms. Hale left defendant with Cierra while she went to get the child some constipation medicine. On Monday, September 18, 1995, Ms. Hale left Cierra in defendant's care while she worked. She called home about 9:30 a.m. and 10:00 a.m. to check on Cierra and spoke to defendant. He said Cierra had used the bathroom and was fine. He said she was laying on the bed with him eating cereal and watching a Barney tape. The aunt also called defendant on Monday and got the same report. Ms. Hale returned home about 5:15 p.m. on Monday evening and observed Cierra in bed with defendant wearing the nightgown she had slept in the night before. Cierra's condition did not appear improved and she still complained about her stomach and not having -5- had a bowel movement. Ms. Hale noted there were no food bowls in the kitchen sink. She went to her mother's apartment to get Cierra an outfit to wear to the hospital. Defendant offered to wash Cierra up while Ms. Hale went upstairs. Ms. Hale put clean clothes on the child. She did not see where defendant put Cierra's nightgown, but noticed that defendant, for the first time ever, had done the laundry. The three went to Mt. Sinai Hospital emergency room, arriving at about 6:15 p.m. Defendant stayed about fifteen minutes and then left to go play basketball. Dr. Glick, the Mt. Sinai emergency room physician, noted Cierra was lethargic, her abdomen was significantly distended and she had an anal fissure. Despite the history of constipation, Dr. Glick did not find hard or rock-type stool. Other findings included recent bruises on the abdomen and a significant intra- abdominal infection. Dr. Glick made a diagnosis of a perforation of the child's abdomen. Due to the clinical findings of an overwhelming intra-abdominal infection, Cierra was transferred to Rainbow Babies and Childrens Hospital that evening. A decision was made to perform surgery on Cierra. Dr. David Dudgeon, the Chief of Pediatric Surgery at Rainbow Babies and Childrens Hospital, testified that Cierra, upon arrival, was lethargic and unresponsive. She had unstable vital signs, bruising over her interior abdomen, and massive abdominal distension. These clinical symptoms did not correspond to the two- day history that had been provided. Dr. Dudgeon diagnosed Cierra -6- with an acute surgical abdomen, which he considered life threatening. Once Cierra was stabilized, exploratory surgery was performed by Dr. Dudgeon. An extremely large amount of infected abdominal fluid was immediately encountered. A major hole on the outside of the small intestine was located and repaired. The surgical team also located a hematoma, or a collection of blood, in the bowel wall. Dr. Dudgeon explained that the hematoma and the perforation were caused by a violent injury. Dr. Dudgeon opined that the injury happened one to three days prior to surgery. Dr. Dudgeon testified that the child's vomiting episode on Saturday was a clinical sign consistent with the abdominal injury sustained. He explained that the force required for Cierra to sustain this type of injury would have been as violent as a fall from a second story window and landing on a fairly sharp object. Dr. Dudgeon also noted that the child's anus was abnormally lax. He observed blood in the anus which was not consistent with constipation,but was an abnormal finding. He noted three bruises on the abdominal wall and a questionable burn on the back of her left thigh. These bruises would not have been caused by Cierra's mother rubbing or pushing Cierra's abdomen in an attempt to relieve constipation. Dr. Dudgeon requested a consultation with Dr. Amy Richardson of Child Protective Services to further evaluate Cierra. Dr. Amy Richardson of Rainbow Babies and Childrens Hospital, an expert in child sexual abuse, testified for the State regarding injuries to Cierra's vaginal and anal orifices. On September 20, -7- 1995, she found Cierra's vaginal opening to be markedly enlarged for her age and a healed disruption of her hymen. Dr. Richardson concluded that those two findings indicated a diagnosis of penetrating trauma to the child's vagina consistent with child sexual abuse. Dr. Richardson also testified that her examination of the child's anus revealed marked laxity. She found the skin around the anus to be very disturbed and asymmetrical with a large scar present. This scar was not an acute injury, nor was it caused by any of the surgeons' instruments. Dr. Richardson explained that the laxity she observed was not from a single penetration, but rather from repeated stretching of the anus. A test was done on Cierra that ruled out any neurological disorder as a cause of the laxity. The child's history of constipation would not result in the anal laxity she observed. Dr. Richardson's diagnosis was penetrating trauma of the anus of a chronic nature. Ms. Hale testified that the day after surgery she and defendant first spoke to Det. Parker of the Cleveland Police Department Sex Crimes Unit. A security officer from the hospital was also present in the doorway of the small interview room. She recalled that Det. Parker identified herself before she spoke to them. When asked what happened to Cierra, defendant said to Ms. Hale, See, that's why I told you not to let the doctors go in the room by themselves to see Cierra. Ms. Hale testified that Det. Parker used a normal tone of voice when speaking with her and defendant. Det. Parker asked them, What's wrong with your -8- daughter? and What's up. Defendant responded, I don't know. She recalled no threats by the detective to either of them. The subject of rape was not discussed. Officer Kent Newman of the University Hospital Protective Services testified that he was assigned to escort Det. Parker to the interview and sit in with the defendant and the mother. Officer Newman testified that due to the small size of the room, he was standing in the doorway during the interview. When Ms. Hale got up to exit the interview, he had to move out of the way and held the door for her. Officer Newman indicated Det. Parker's demeanor was fairly a matter of fact. He also testified to defendant's remark that Ms. Hale should not have left the baby alone with the doctors. Officer Newman testified that the demeanor in the room somewhat changed after this comment. Defendant became more defensive and hesitant and the detective seemed a little more aggressive in her questioning. Officer Newman did not recall Det. Parker using the words rape, molest, molesting, or semen during the interview. Det. Laura Parker testified to her role and interview of the mother and defendant. After speaking to the child's nurses, she then arranged to meet with the child's parents. Neither defendant nor the mother were suspects at this point so no Miranda rights were given. Det. Parker asked what happened and defendant responded that There wasn't nothing wrong with Cierra and he turned to the mother and added, Didn't I tell you not to leave her -9- alone with the doctors. It wasn't nothing wrong with her when we brought her in here. Defendant explained to Det. Parker that he was the child's babysitter when the mother worked; that the child threw up on Saturday, but was fine on Monday; that he never let Cierra out of his sight; and that he never observed any marks on her. When asked specifically about the burn on the child's leg, he said that was from her falling on a lamp. He denied seeing any other marks on the child, but did state that the child's mother had pressed on the child's stomach to facilitate her going to the bathroom before she brought her to the hospital. Defendant further indicated to the detective that the child had fallen on her butt two weeks earlier. He also said he would never hit the child, nor had he seen anyone else hit her. In the course of their discussion, defendant gave Det. Parker the names of all the persons in contact with Cierra. Subsequently, a problem surfaced with the social security number defendant provided. Upon learning of the problem, the detective made a decision to return to the hospital and arrest defendant. Defendant did not present a defense at trial. The State dismissed one count of felonious assault at the close of its case. The other four counts were submitted to the jury. While the jury was deliberating, Ms. Hale approached the prosecutors assigned to this case and indicated she wanted to speak with the judge about her testimony. Counsel was immediately assigned to her. On October 28, 1996, Ms. Hale advised the court -10- as to the problem she perceived in her testimony. Ms. Hale indicated that if she had been asked whether Det. Parker claimed *** if you don't come and take the stand, you won't never get your child back, she would reply, Yes. Ms. Hale confirmed that Det. Parker did not say this to her at their first meeting at the hospital about which she testified at trial. Rather, this discussion apparently happened about two weeks later when Cierra was transferred out of intensive care. Ms. Hale informed the court that her entire trial testimony was otherwise truthful. She also told the court that she did not view Det. Parker's remark as a threat. The jury returned its verdicts of guilty to the four counts. Defendant filed a motion for new trial based in part on Ms. Hale's trial and post-conviction testimony. This motion was denied and defendant was subsequently sentenced to eight to fifteen years for felonious assault; one and one-half to five years for child endangering; and two mandatory life sentences for the two counts of felonious sexual penetration. All counts were ordered to be served concurrently. A timely appeal ensued. We will address defendant's assignments of error in the order asserted and together where it is appropriate for discussion. I. THE TRIAL COURT IMPROPERLY DENIED THE APPELLANT'S MOTION TO SUPPRESS STATEMENTS PURSUANT TO THE FIFTH AND FOURTEENTH AMENDMENTS OF THE U.S. CONSTITUTION. Defendant contends that his statements in a meeting with Det. Parker of the Sex Crimes Unit on September 20, 1995 were given while he was in custody, were without benefit of Miranda warnings -11- and should have been suppressed. The issue turns on whether the defendant was free to go at the time of Det. Parker's questioning. That would depend on objective circumstances of the interrogation, not the subjective views harbored by either the interrogating officer or the person being questioned. Stansbury v. Calif. (1994), 114 S.Ct. 1526, 1529. The only relevant inquiry is how a reasonable man in the suspect's shoes would have understood the situation. Id., quoting Berkemer v. McCarty (1984), 104 S.Ct. 3138, 3151. On September 20, 1995, Det. Parker had her first meeting with the victim's biological mother and her boyfriend, the defendant, to ascertain what happened to the child. Det. Parker was accompanied by a University Hospital security guard due to the hospital's policy for their guards to work with outside law enforcement. She met with defendant and the child's mother in a family room which the security guard had made arrangements to use. Prior to the meeting, Det. Parker had not yet reviewed the medical records and did not have any suspects in her mind. Det. Parker did not even know that the victim had also been sexually abused. She introduced herself and indicated she was a detective from the Sex Crime/Child Abuse Unit. Det. Parker posed a generic question of what happened to Cierra. Defendant addressed a remark to Ms. Hale: I told you not to leave her alone with the doctors, they did something to her. She wasn't like that Monday when we brought her in. After the comment, the victim's mother got up while defendant remained with -12- the detective. The victim's mother was not prevented from leaving. Defendant continued to speak with Det. Parker about the victim's injuries. After the detective left the interview room, she issued no orders that defendant was to be detained or his movements in the hospital were to be restrained in any way. Det. Parker testified that at no time was defendant prevented from leaving the room after the mother left. Defendant became a suspect later after Det. Parker spoke to Dr. Richardson, the sex abuse expert who had been consulted, and a criminal record check revealed something amiss with defendant's social security number and name spelling. The scope of our review on a motion to suppress was set forth by this Court in State v. Curry (1994), 95 Ohio App.3d 93, 96: In a motion to suppress, the trial court assumes the role of trier of fact and is in the best position to resolve questions of fact and evaluate witness credibility. State v. Clay(1973), 34 Ohio St.2d 250, 63 O.O.2d 391, 298 N.E.2d 137. A reviewing court is bound to accept those findings of fact if supported by competent, credible evidence. See State v. Schiebel (1990), 55 Ohio St.3d 71, 564 N.E.2d 54. However, without deference to the trial court's conclusion, it must be determined independentlywhether, as a matter of law, the facts meet the appropriate legal standard. State v. Claytor (1993), 85 Ohio App.3d 623, 627, 620 N.E.2d 906, 908. We can find no basis in the record for overturning the trial court's determination not to suppress the statement. The issue was basically one of credibility. Det. Parker testified that defendant was free to leave the room just as his girlfriend had done; he was informed as to what -13- agency Det. Parker represented; he chose to continue speaking with the detective after his girlfriend abruptly left the room, despite the presence of the security guard. As the trial court stated in its denial of the motion: *** to require the police to Mirandize everybody would make it so that every time you speak to anybody about an incident it is unreasonable. I don't believe they have identified himself as a suspect unless all parents are suspects if their children get hurt. I would like to go that far ***. We find that the trial court's decision was supported by credible and competent evidence. Assignment of Error I is overruled. II. THE TRIAL COURT COMMITTED PLAIN ERROR IN ADMITTING HEARSAY AND BAD ACTS EVIDENCE AND COUNSEL WAS INEFFECTIVE FOR FAILING TO OBJECT TO SUCH EVIDENCE IN VIOLATION OF THE SIXTH AND FOURTEENTH AMENDMENTS OF THE U.S. CONSTITUTION. The State filed a pretrial motion requesting permission pursuant to Evid.R. 404(B) to use defendant's prior conviction for child abuse as prior act evidence. This motion was denied and the jury never heard about the prior conviction. At trial, the mother testified that defendant only did the laundry once and that was on the same day the child went to the hospital. This was relevant to show the jury he may have been trying to hide something by doing the laundry. In a technical sense, this was not other act testimony; nor was it offered to show defendant was a bad person or for any of the enumerated reasons cited in the other act rule. Doing or not doing laundry is not ordinarily evidence of vice or virtue. Nor did testimony -14- about defendant not cleaning the house or failing to do dishes while serving as the victim's care giver violate the court's denial of the Evid.R. 404(B) motion. Defendant's alleged admissions to two persons that he whipped the child for urinating on herself also was not a violation of the court's Evid.R. 404(B) ruling. Trial counsel's services are not ineffective when this objection would have been futile. The evidence was clearly admissible. This circumstantial evidence may have been prejudicial, but it was certainly relevant to explaining various marks seen on the child while she was in defendant's care. The admission of this evidence was within the trial court's sound discretion. We find no abuse of discretion here. Assignment of Error II is overruled. III. THE EVIDENCE OF IDENTIFICATION IS INSUFFICIENT TO SUSTAIN THE APPELLANT'S CONVICTION. IV. THE VERDICTS ARE AGAINST THE WEIGHT OF THE EVIDENCE. The standard of review with regard to the sufficiency of evidence is set forth in State v. Bridgeman (1978), 55 Ohio St.2d 261, syllabus: Pursuant to Criminal Rule 29(A), a court shall not order an entry of judgment of acquittal if the evidence is such that reasonable minds can reach different conclusions as to whether each material element of a crime has been proved beyond a reasonable doubt. See, also, State v. Apanovitch (1987), 33 Ohio St.3d 19, 23; State v. Davis (1988), 49 Ohio App.3d 109, 113. Bridgeman must be interpreted in light of the sufficiency test outlined in State v. -15- Jenks(1991), 61 Ohio St.3d 259, paragraph two of the syllabus, in which the Ohio Supreme Court held: An appellate court's function when reviewing the sufficiency of the evidence to support a criminal conviction is to examine the evidence submitted at trial to determine whether such evidence, if believed, would convince the average mind of the defendant's guilt beyond a reasonable doubt. 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. (Jackson v. Virginia [1979], 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560, followed.) Quoted and followed in State v. Garner (1995), 74 Ohio St.3d 49, 60. When the argument is made that the conviction was against the manifest weight of the evidence, the appellate court is obliged to consider the weight of the evidence not its mere legal sufficiency. The defendant has a heavy burden in overcoming the fact finder's verdict. As the Supreme Court of Ohio has stated in State v. Thompkins (1997), 78 Ohio St.3d 380, 387: Weight of the evidence concerns the inclination of the greater amount of credible evidence, offered in a trial, to support one side of the issue rather than the other. It indicates clearly to the jury that the party having the burden of proof will be entitled to their verdict, if, on weighing the evidence in their minds, they shall find the greater amount of credible evidence sustains the issue which is to be established before them. Weight is not a question of mathematics, but depends on its effect in inducing belief. (Emphasis added.) Black's supra, at 1594. -16- When a court of appeals reverses a judgment of a trial court on the basis that the verdict is against the weight of the evidence, the appellate court sits as a `thirteenth juror' and disagrees with the factfinder's resolution of the conflicting testimony. Tibbs, 457 U.S. at 42, 102 S.Ct. at 2218, 72 L.Ed.2d at 661. See, also, State v. Martin (1983), 20 Ohio App.3d 172, 175, 20 OBR 215, 219, 485 N.E.2d 717, 720-721 ( The court, reviewing the entire record, weighs the evidence and all reasonable inferences, considers the credibility of witnesses and determines 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. The discretionary power to grant a new trial should be exercised only in the exceptional case in which the evidence weighs heavily against the conviction. ). The physicians who treated Cierra found that her injuries were sustained approximately twenty-four hours to seventy-two hours before she appeared at the hospital. Defendant was alone with the child all day on the Friday before admission. Her symptoms began to appear Saturday afternoon in the form of vomiting, lethargy and hardening of the stomach. Defendant argues in his brief (p. 10) [T]here is no evidence that the appellant injured this child during the time frame in question. To be sure, there was no eyewitness to the abuse. The child was alone with defendant during this period. Her symptoms began to appear on Saturday, September 16, 1995, the day after being alone with defendant most of the previous workday hours. Given the foregoing evidence, we find it was sufficient to satisfy the elements of the crime beyond a reasonable doubt and the verdicts were not against the manifest weight of the evidence. -17- Assignments of error III and IV are overruled. V. THE TRIAL COURT ABUSED ITS DISCRETION IN DENYING THE APPELLANT'S MOTION FOR A NEW TRIAL. Ms. Hale testified at trial that no threat about losing custody of her child was made by Det. Parker when she and defendant were interviewed by the detective on September 20, 1995. After trial, she alleged that Det. Parker told her a few weeks after their first meeting that she would not get her child back if she did not prosecute defendant. Ms. Hale stated under oath that she did not view this as a threat because she knew already she was going to cooperate in defendant's prosecution. Defendant claims the trial court erred in not granting a new trial based on the post-trial recantation of Ms. Hale. A trial court's decision to grant or deny a motion for new trial is not reversible on appeal absent an abuse of discretion. State v. Schiebel (1990), 55 Ohio St.3d 71, syllabus. An abuse of discretion exists where the record shows that the court's attitude was unreasonable, arbitrary or unconscionable. State v. Montgomery (1991), 61 Ohio St.3d 410, 413; State v. Adams (1980), 62 Ohio St.2d 151, 157. The discretionary decision to grant a new trial is an extraordinary measure which should be used only when the evidence presented weighs heavily in favor of the moving party. State v. Otten (1986), 33 Ohio App.3d 339, 340. We do not find that Ms. Hale's recantation justified the award of a new trial. Nevertheless,defendant does not meet the standard set out in State v. Petro (1947), 148 Ohio St. 505, syllabus, for abuse of -18- discretion. See, also, State v. Hawkins (1993), 66 Ohio St.3d 339, 350; State v. Tijerna (1994), 99 Ohio App.3d 7, 11. There are four prongs to the Petro test: (1) the evidence must have been discovered since trial, i.e., newly discovered evidence; (2) by due diligence, this evidence could not have been found prior to trial; (3) the evidence is not merely cumulative, impeaching or contradictory to the former evidence; and (4) there is a strong probability of a change in the result of the trial had the evidence been used at trial. The four-prong test of Petro has not been met in this case. Where a new trial is sought upon the ground that a witness subsequently stated that he gave perjured testimony, the question is, when did the witness tell the truth? Recantation by an important witness of his or her testimony at the trial does not necessarily, or as a matter of law, entitle the defendant to a new trial. The determination of such matters rests in the sound discretion of the trial court, whose action will not be set aside except for clear and manifest abuse. State v. Pirman (1994), 94 Ohio App.3d 203, citing State v. Curnutt (1948), 84 Ohio App. 101; State v. Walker (1995), 101 Ohio App.3d 433, 435. Newly discovered evidence which purportedly recants testimony given at trial is looked upon with the utmost suspicion. State v. Germany (Sept. 30, 1993), Cuyahoga App. No. 63568, unreported, citing United States v. Lewis (C.A.6, 1964), 338 F.2d 137, 139, quoting United States v. Trouche (C.A.2, 1954), 213 F.2d 401, 403. Thus, a motion for a new trial should only be granted when the -19- court is reasonably well satisfied that the trial testimony given by a material witness was false. Id. We find no evidence that the trial court abused its discretion in denying defendant's motion for a new trial. The State and apparently defendant's trial attorney were unaware that there was ever a second discussion between Ms. Hale and Det. Parker. All questions at trial asked of Ms. Hale about any alleged threats made by Det. Parker focused on the September 20, 1995 meeting as though it was their only meeting and thus the only time the alleged threat could have been made. Neither the State nor defense counsel ever asked Ms. Hale or Det. Parker about additional discussions or threats that were had or made. Furthermore, Ms. Hale indicated to the court that her trial testimony was entirely truthful in all other respects. (Tr. 1048). There was no evidence that this information could not have been discovered in the exercise of due diligence or if it had, it would have changed the outcome. Accordingly, we find no merit to this assignment of error. Assignment of Error V is overruled. VI. REVISED CODE 2950.01 ET SEQ. IS UNCONSTITUTIONAL AND THE COURT VIOLATED THE APPELLANT'S RIGHTS UNDER THE U.S. AND OHIO CONSTITUTIONS. House Bill 180 became effective, in part, on January 1, 1997 and, in part, on July 1, 1997. Defendant in this case was sentenced on January 10, 1997 and found to be a Sexually Oriented Offender on January 15, 1997. R.C. 2950.04 sets forth those individuals to whom the new law applies. This section requires the -20- registration of offenders sentenced after July 1, 1997, those offenders released from prison after July 1, and to habitual sex offenders classified under the prior law. Because defendant herein was sentenced prior to July 1, his classification as a Sexually Oriented Offender was untimely and will be set aside. Since the State is in agreement with this analysis, we find merit to defendant's argument and vacate the finding that defendant is a habitual sexual predator. Assignment of Error VI is sustained. Judgment affirmed in part; reversed in part. -21- It is ordered that appellee recover of appellant its costs herein taxed. The Court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this Court directing the Court of Common Pleas to carry this judgment into execution. The defendant's conviction having been affirmed in part, any bail pending appeal is terminated. Case remanded to the trial court for execution of sentence. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. NAHRA, J., and PATTON, J., CONCUR. JAMES M. PORTER PRESIDING JUDGE N.B. This entry is an announcement of the court's decision. See App.R. 22(B), 22(D) and 26(A); Loc.App.R. 27. This decision will be journalized and will become the judgment and order of the court pursuant to App.R. 22(E) unless a motion for reconsideration with supporting brief, per App.R. 26(A), is filed within ten (10) days of the announcement of the court's decision. The time period for review by the Supreme Court of Ohio shall begin to run upon the journalization of this court's announcement of decision by the .