State v. Wood

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[Cite as State v. Wood, 2010-Ohio-884.] COURT OF APPEALS STARK COUNTY, OHIO FIFTH APPELLATE DISTRICT STATE OF OHIO Plaintiff-Appellee JUDGES: Hon. William B. Hoffman, P. J. Hon. Sheila G. Farmer, J. Hon. John W. Wise, J. -vsCase No. 2009 CA 00190 AMANDA WOOD Defendant-Appellant OPINION CHARACTER OF PROCEEDING: Criminal Appeal from the Court of Common Pleas, Case No. 2008 CR 01461(A) JUDGMENT: Affirmed DATE OF JUDGMENT ENTRY: March 8, 2010 APPEARANCES: For Plaintiff-Appellee For Defendant-Appellant JOHN D. FERRERO PROSECUTING ATTORNEY KATHLEEN O. TATARSKY ASSISTANT PROSECUTOR 110 Central Plaza South, Suite 510 Canton, Ohio 44702-1413 DEREK LOWRY 116 Cleveland Avenue NW 800 Courtyard Center Canton, Ohio 44702 Stark County, Case No. 2009 CA 00190 2 Wise, J. {¶1} Appellant Amanda Wood appeals from her kidnapping conviction and sexual offender classification in the Court of Common Pleas, Stark County. The appellee is the State of Ohio. The relevant facts leading to this appeal are as follows. {¶2} On August 10, 2008, Z.M., a five-year-old male child, was taken by ambulance to Akron Children s Hospital. The child was unconscious and had burns and bruises on his body. Following an investigation by law enforcement officials, the Stark County Grand Jury indicted appellant and her husband, Daniel W. Wood, on four counts of child endangering and one count of kidnapping. {¶3} Appellant initially pled not guilty, but later changed her plea to guilty as charged in the indictment. Appellant was thereafter sentenced to five years in prison on each count, to be served concurrently. After appellant s prison term commenced, however, the trial court permitted appellant to withdraw her plea of guilty to the kidnapping charge and to enter a plea of no contest as to that count. The court thereupon found appellant guilty of kidnapping and again accepted her pleas of guilty to four counts of child endangering. {¶4} Appellant was thereupon resentenced to five years in prison on each count, to run concurrently. She was also classified a Tier III sex offender. {¶5} On July 17, 2009, appellant filed a notice of appeal. She herein raises the following sole Assignment of Error: {¶6} I. THE TRIAL COURT ERRED IN CLASSIFYING THE APPELLANT AS A TIER III SEX OFFENDER. Stark County, Case No. 2009 CA 00190 3 I. {¶7} In her sole Assignment of Error, appellant contends the trial court erred in classifying her as a Tier III sexual offender. We disagree. {¶8} Ohio enacted a sexual offender classification system in 1997, although sex offender registration in Ohio dates to 1963. S.B. 10, effective January 1, 2008, altered Ohio s classification system. The revised statutes now require a trial court to classify an offender (Tier I, Tier II, or Tier III) based solely on the specific conviction. R.C. 2950.01(E)-(G). Tier III, the highest tier and similar to the old sexual predator finding, requires registration every 90 days for life, and the community notification may occur every 90 days for life. State v. Omiecinski, Cuyahoga App.No. 90510, 2009Ohio-1066, ¶ 29, citing R.C. 2950.07. {¶9} A Tier III classification is warranted for a violation of division (B) of R.C. 2905.01 (Kidnapping) when the victim of the offense is under eighteen years of age and the offender is not a parent of the victim of the offense. See R.C. 2950.01(A)(9); R.C. 2950.01(G)(1)(f). {¶10} Appellant does not dispute that she is Z.M. s aunt and is not his parent. Furthermore, although apparently not presented to the trial court, she has attached a copy of a judgment entry from the Tuscarawas County Court of Common Pleas, Juvenile Division, purporting to show that she was the child s legal custodian at the time of the kidnapping offense. Appellant essentially urges that a kidnapping (under R.C. 2905.01(B)) committed by a legal custodian should be exempt from sexual offender classification in the same manner as a kidnapping (under R.C. 2905.01(B)) committed by a parent. Stark County, Case No. 2009 CA 00190 4 {¶11} Nonetheless, as the State responds in its brief, the General Assembly has utilized the expanded terminology of parent/guardian/custodian in other statutes in the Revised Code (see, e.g., R.C. 2151.03 and R.C. 2905.05), as well as the phrase in loco parentis (see R.C. 2919.22). Clearly, the General Assembly has chosen not to similarly expand the use of the word parent in R.C. 2950.01(A)(9) and R.C. 2950(G)(1)(f). As an appellate court, we ordinarily must presume that the legislature means what it says; we cannot amend statutes to provide what we consider a more logical result. See State v. Link, 155 Ohio App.3d 585, 2003-Ohio-6798, 802 N.E.2d 680, ¶ 17, citing State v. Virasayachack (2000), 138 Ohio App.3d 570, 741 N.E.2d 943. {¶12} Accordingly, upon review of the record, we find no merit in appellant s argument that the Tier III classification should not apply to her. Appellant s sole Assignment of Error is overruled. {¶13} For the reasons stated in the foregoing opinion, the judgment of the Court of Common Pleas, Stark County, Ohio, is affirmed. By: Wise, J. Hoffman, P. J., and Farmer, J., concur. /S/ JOHN W. WISE___________________ /S/ WILLIAM B. HOFFMAN_____________ /S/ SHEILA G. FARMER_______________ JUDGES JWW/d 224 Stark County, Case No. 2009 CA 00190 5 IN THE COURT OF APPEALS FOR STARK COUNTY, OHIO FIFTH APPELLATE DISTRICT STATE OF OHIO Plaintiff-Appellee -vsAMANDA WOOD Defendant-Appellant : : : : : : : : : JUDGMENT ENTRY Case No. 2009 CA 00190 For the reasons stated in our accompanying Memorandum-Opinion, the judgment of the Court of Common Pleas of Stark County, Ohio, is affirmed. Costs assessed to appellant. /S/ JOHN W. WISE___________________ /S/ WILLIAM B. HOFFMAN_____________ /S/ SHEILA G. FARMER_______________ JUDGES

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