State v. Buskirk
2014 Ohio 5551
Ohio Ct. App.2014Background
- In 1989 Gerald Van Buskirk was convicted by a jury of three counts of rape (and one kidnapping count treated as allied) for a violent 1988 attack; he received three consecutive 14–25 year terms.
- He had prior convictions for rape (1981), attempted rape (1979), and aggravated assault (1972).
- In 1999 the state requested a sexual predator adjudication; the H.B. 180 hearing and related evaluations (including a Static-99) occurred in March 2014 after court referrals and receipt of prison records.
- The Static-99 placed Van Buskirk at moderately high risk when age-adjusted (high risk without age adjustment); evaluations noted antisocial personality disorder, substance-abuse history, and failure to complete treatment programs.
- The trial court found Van Buskirk to be a sexual predator and also (erroneously under applicable law) an habitual sexual offender; this appeal followed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether court could classify Van Buskirk both an habitual sexual offender and a sexual predator | State asked for both classifications | Van Buskirk argued dual classification was erroneous | Vacated habitual sexual offender classification; sexual predator classification remains (trial court should not make habitual finding after sexual-predator finding for pre-1997 convictions) |
| Whether evidence met clear-and-convincing proof that Van Buskirk is likely to reoffend sexually | State relied on Static-99, prior sexual convictions, violent facts of the offense, treatment noncompletion, mental-health diagnosis | Van Buskirk argued evidence insufficient to show likelihood of future offenses | Affirmed: some competent, credible evidence supported sexual-predator finding under civil manifest-weight standard |
| Whether trial court had jurisdiction to hold the sexual-predator hearing | State relied on record showing notifications, H.B. 180 packet, and APA notice received by court | Van Buskirk argued DRC did not initiate proceedings as required, so court lacked jurisdiction | Overruled defendant: record presumed regularity; court had jurisdiction to proceed |
| Whether sexual-predator finding was against manifest weight of the evidence | State: statutory factors and evaluations (Static-99, history) justify finding | Van Buskirk: record does not sustain firm belief by trier of facts | Overruled defendant: court’s finding supported by competent, credible evidence |
Key Cases Cited
- State v. Wilson, 113 Ohio St.3d 382 (Ohio 2007) (civil manifest-weight standard and "some competent, credible evidence" test for sex-offender classification hearings)
- State v. Eppinger, 91 Ohio St.3d 158 (Ohio 2001) (statutory definition of "sexual predator" and requirement of likelihood to reoffend)
- State ex rel. Bruggeman v. Ingraham, 87 Ohio St.3d 230 (Ohio 1999) (procedures for post-1997 and pre-1997 sexual-predator hearings involving DRC/APA notifications)
- C.E. Morris Co. v. Foley Constr. Co., 54 Ohio St.2d 279 (Ohio 1978) ("some competent, credible evidence" standard for affirming civil findings)
- Cross v. Ledford, 161 Ohio St. 469 (Ohio 1959) (clear-and-convincing evidence defined as producing firm belief or conviction)