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Thursday, July 24, 2014
COLUMBUS, Ohio — The Ohio Supreme Court says judges can hold hearings to determine the offender status of juveniles convicted of sex crimes at the time they are found guilty or when they're released from detention.
The court's unanimous decision Tuesday came in a 2011 Clark County case involving a juvenile found delinquent for a rape committed when he was 14 years old.
Lawyers for the boy, who was sentenced to at least one year in detention, challenged the fact he was also classified as a sex offender, saying that determination should be made when he is released.
The appeals court for Clark County ruled against the boy, but the Supreme Court took the case because the appeals court for Canton came to a different conclusion in another case. ..Source.. by TribTown.com
A Texas man can sue a Dallas-area suburb over the constitutionality of its ban on registered sex offenders living within 1,500 of children, the 5th Circuit ruled.
Registered child sex offender Aurelio Duarte and his family sued Lewisville, Texas, after he tried and failed to find a house to rent or buy in the city that complied with the ordinance. He had earlier served eight years in state prison after a conviction of online solicitation of a minor.
Duarte returned to Lewisville upon his release in 2009 and learned of the ordinance enacted one year earlier that bans registered child sex offenders from living within 1,500 feet of "where children commonly gather."
The family currently lives in a one-bedroom motel room to comply with the ordinance.
The trial court later dismissed they family's constitutional claims, concluding they lacked standing.
A three-judge panel with the 5th Circuit disagreed, unanimously reversing and remanding the ruling Tuesday.
Writing for the panel, Judge Edward C. Prado said Duarte and his family have standing because they had "concrete" plans to live in Lewisville as opposed to indefinite plans.
Wednesday, July 9, 2014
The state’s highest court has tossed out a child pornography case against a convicted child rapist who had photocopies of pictures of naked children from a National Geographic magazine, a sociology textbook, and a naturist catalogue in his state prison cell.
The state Supreme Judicial Court said that the photos allegedly kept by sex offender John D. Rex did not constitute a “lewd exhibition” so they weren’t covered under the state’s law banning child pornography.
The court noted previous decisions that had found that “nudity alone is not enough to render a photograph lewd.”
“There is nothing remotely sexual, either explicitly or implicitly, in any of the photocopies,” the court said after reviewing the pictures.
The court, in an opinion written by Justice Francis X. Spina, agreed with a Superior Court judge who had dismissed a Norfolk County grand jury indictment against Rex that charged him with seven counts of possession of child pornography and seven counts of being a habitual offender.
“As a matter of law, no grand jury could conclude that the seven photocopies constituted a ‘lewd exhibition’” under state law, the court said. “It follows therefore that the grand jury were not presented with any evidence to support a finding of probable cause to arrest the defendant for possession of child pornography.”
The court noted that the photos came from materials that are readily available to the general public, though perhaps to niche audiences. And it noted previous court decisions that found “child pornography is not created when the [viewer] derives sexual enjoyment from an otherwise innocent photograph.”
Rex, 43, is an incarcerated Level 3 sex offender who has been convicted of eight sex charges, including rape and abuse of a child, according to the state’s sex offender registry.
In a statement, Norfolk District Attorney Michael Morrissey said the SJC ruling runs counter to federal law where judges have ruled images can be considered child pornography when there is evidence that the image was cropped to emphasize the nude child.
Rex cropped the images just that way, Morrissey’s office said in a statement.
“We see this decision as an unfortunate departure from federal case law,’’ Morrissey said. “A Norfolk County grand jury found that the images possessed by Rex were lewd, and the case law prior to this suggested strongly that decision was appropriately made by a jury of citizens.’’ ..Source.. by John R. Ellement
Friday, July 4, 2014
A state appeals court has upheld the three-year prison sentence that a Jefferson Parish judge gave a Port Sulphur man for failing to complete his sex offender registration. Carlo Muth, 39, said the punishment is excessive, because he tried to register when he moved to Jefferson Parish but could not afford the $628.75 fee that the Sheriff's Office charged him.
Muth was given the sentence in September by Judge Lee Faulkner of the 24th Judicial District Court. A jury had convicted Muth for failing to register as a sex offender when he moved to Jefferson in 2012.
He was required to register because of his 2005 guilty plea in Plaquemines Parish's 25th Judicial District Court to to molestation of a juvenile. He admitted having sex with a 14-year-old girl, when he was 29.
When he moved to Jefferson, he notified the Sheriff's Office and registered as a sex offender. He was given 21 days to notify the community, a requirement of state law. But he told the Sheriff's Office he could not afford the community notification fee, court records show. Lt. Luis Munguia, in charge of the sex offender registry, gave him an extension through January 2013. Muth still did not register, leading Munguia to seek his arrest.
Muth moved back to Plaquemines in March 2013 and was trying to register as a sex offender there when he was arrested on the Munguia's warrant. Police say he admitted he had been paid at his job but that he still made no attempt to pay the Jefferson fee.
After Muth was convicted, Faulkner sentenced him to three years in prison with no benefit of probation, parole or suspended sentence. His trial attorney's argument that the sentence was excessive was unheeded.
Muth appealed to the 5th Circuit Court of Appeal in Gretna. A three-judge panel sided with Faulkner in finding that the trial judge did not abuse his discretion in handing down the punishment.
The punishment range for failing to register is two years to 10 years in prison, the appellate court noted. Another Jefferson Parish judge had previously handed down a five-year sentence in an unrelated case, the appellate court found.
"In the instant case, although (Muth) has only one prior felony conviction and his instant conviction appears to stem from financial difficulty, we find that these mitigating factors are reflected in his sentence that is less than midrange and illegally lenient," Judge Jude Gravois wrote in the June 24 opinion, for Susan Chehardy and Robert Murphy.
"Accordingly, we concluded that the trial court did not abuse its discretion in sentencing (Muth) to three years imprisonment at hard labor without benefits. ..Source.. by