Case Number 2-99-15. | Ohio Ct. App. | Nov 9, 1999
Lead Opinion
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *761 OPINION
Defendant Brett A. Anderson appeals the April 15, 1998 judgment of the Auglaize County Court of Common Pleas finding him to be a sexual predator under Chapter 2950 of the revised code.
On March 27, 1997, defendant was indicted on four separate counts of gross sexual imposition in violation of R.C.
On March 19, 1999, the trial court held a hearing to determine defendant's status pursuant to R.C.
On April 15, 1999, the trial court denied defendant's motion and found defendant to be a sexual predator based on the evidence presented at the March 19 hearing. Defendant now appeals and asserts two assignments of error with the trial court's judgment. *762
THE TRIAL COURT COMMITTED AN ERROR OF LAW BY NOT FINDING THAT THE SEXUAL OFFENDER CLASSIFICATION SCHEME IS UNCONSTITUTIONAL UNDER ARTICLE I, SECTION I OF THE OHIO CONSTITUTION.
On the authority of e.g., State v. Marker (Sept. 1, 1999), Seneca App. No. 13-99-05, unreported, 1999 WL 692410, defendant's first assignment of error is overruled.
Defendant's second assignment of error argues that the evidence adduced at the March 19, 1999 hearing does not support the trial court's determination that the defendant was a sexual predator:
The Defendant has a history of inappropriate and illegal conduct towards young girls. While not beyond a reasonable doubt, there is clear and convincing evidence that this Defendant is sexually attracted to under-age, pre-pubescent girls. He exposed his penis to a young girls under circumstances which this Court finds to have been, by clear and convincing evidence, part of a pattern of acting out based upon his sexual attraction for young girls.
The Court finds, by clear and convincing evidence, that the Defendant is a person who is likely to engage in the future in one or more sexually oriented offenses, and accordingly finds the defendant to be a sexual predator.
R.C.
In making a determination under divisions (B)(1) and (3) of this section as to whether an offender is a sexual predator, the judge shall consider all relevant factors, including, but not limited to, all of the following:
(a) The offender's age;
*763(b) The offender's prior criminal record regarding all offenses, including, but not limited to, all sexual offenses;
(c) The age of the victim of the sexually oriented offense for which sentence is to be imposed;
(d) Whether the sexually oriented offense for which sentence is to be imposed involved multiple victims;
(e) Whether the offender used drugs or alcohol to impair the victim of the sexually oriented offense or to prevent the victim from resisting;
(f) If the offender previously has been convicted of or pleaded guilty to any criminal offense, whether the offender completed any sentence imposed for the prior offense and, if the prior offense was a sex offense or a sexually oriented offense, whether the offender participated in available programs for sexual offenders;
(g) Any mental illness or mental disability of the offender;
(h) The nature of the offender's sexual conduct, sexual contact, or interaction in a sexual context with the victim of the sexually oriented offense and whether the sexual conduct, sexual contact, or interaction in a sexual context was part of a demonstrated pattern of abuse;
(i) Whether the offender, during the commission of the sexually oriented offense for which sentence is to be imposed, displayed cruelty or made one or more threats of cruelty;
(j) Any additional behavioral characteristics that contribute to the offender's conduct.
R.C.
The defendant argues that because there are "at most two" of the ten R.C.
At the outset, we observe that the allegations underlying defendant's conviction were that the defendant had touched the genitals of an eleven year-old female victim on *764 three separate occasions, and that the defendant had once placed the victim's hand on his crotch area through his clothes. The State charged the defendant with four felony counts of Gross Sexual Imposition, one count for each allegation. However, the jury convicted defendant of only one of the counts alleged in the in the indictment, finding defendant guilty of touching the victim's genitalia on one occasion.
Despite the jury's verdict, it appears that the trial court considered the victim's testimony on all of the charges in making its sexual offender classification decisions. We must therefore determine whether it was appropriate for the trial court to consider the three remaining allegations during the sexual offender classification proceedings. We first observe that, unlike the jury, the trial court was not required to find that the allegations were proved beyond a reasonable doubt. The relevant standard in sexual offender classification proceedings is not reasonable doubt, but the lesser standard of "clear and convincing evidence":
After reviewing all testimony and evidence presented at the hearing conducted under division (B)(1) of this section and the factors specified in division (B)(2) of this section, the judge shall determine by clear and convincing evidence whether the offender is a sexual predator.
R.C.
We are aware that testimony relating to charges for which the defendant was acquitted may not generally be considered for purposes of sentencing. See, e.g., Columbus v. Jones (1987),
Moreover, we must reiterate that the transcript of the victim's trial testimony was admitted into evidence at the sexual classification hearing without objection. It is thus subject to a plain error analysis. See State v. Cook,
In addition to the testimony of the victim, the State presented testimony at the sex offender classification hearing from one young woman who testified regarding an incident that she alleged to have occurred at some point in 1993 or 1994, when she was approximately thirteen years old. This witness alleged that the defendant, while still clothed, had rubbed his penis against her leg. The state also offered testimony from another young woman who alleged that when she was ten or eleven the defendant had exposed his penis to her on two separate occasions. Both witnesses were fully cross-examined by defendant's counsel. Finally, the presentence investigation report established that the defendant had not accepted any responsibility for any of the foregoing incidents, and instead asserted that all of the victims had been lying.
The evidence presented at the sexual offender classification hearing provides a clear and convincing basis for the trial court's conclusion that defendant is a sexual predator. The evidence establishes several relevant R.C.
For the foregoing reasons, the judgment of the Auglaize County Court of Common Pleas is affirmed.
Judgment affirmed.
BRYANT, P.J., concurs.
WALTERS, J., concurs separately. *766
Concurrence Opinion
I concur with the judgment rendered herein because I find, based upon the record before us, that there is sufficient competent evidence for the trial court to have determined, by clear and convincing evidence, that Appellant is a sexual predator. However, I am compelled to write separately because I cannot agree with the majority's endorsement of the trial court's consideration of the underlying facts of the charges for which Appellant was ultimately acquitted.
In spite of the fact that it was not raised as an assignment of error, the majority discusses the propriety of the court's consideration of the very charges for which Appellant was acquitted for the purpose of determining his status as a sexual predator. I do not share the majority's enthusiasm for this consideration.
In State v. Cook (1998),
Within the context of sentencing hearings, it has long been established under Ohio law that it is improper for a court to sentence a defendant based upon the consideration of the underlying facts of an acquitted charge. See Columbus v. Jones
(1987),
While there may be some authority to the contrary, I remain firmly convicted that such considerations are entirely impermissible. The Supreme Court of the United States has held that under the federal sentencing guidelines, it is appropriate to consider the underlying facts of an acquitted charge when determining a sentence for the convicted offense. United Statesv. Watts (1997),
The majority appears to reason that because the clear and convincing burden of proof utilized in a sexual predator hearing is lower than the burden of proof necessary to render a guilty verdict, and because the effect of the sexual predator determination is remedial rather than punitive, the consideration of acquitted charges should be permitted. I am convinced that these distinctions merely cloud the issue. Indeed, the clear and convincing standard applicable in the sexual predator setting is applied to determine whether the offender is "likely to engage in the future in one or more sexually oriented offenses." R.C.
R.C.
The record presented to this court, convinces me that even without any consideration of the charges for which Appellant was acquitted, the trial court's decision to adjudicate Appellant a sexual predator was not in error. However, based upon the foregoing, I cannot concur with the reasoning expressed by the majority today.