STATE OF OHIO, PLAINTIFF-APPELLEE vs. GERALD VAN BUSKIRK, DEFENDANT-APPELLANT
No. 101221
Cоurt of Appeals of Ohio, EIGHTH APPELLATE DISTRICT, COUNTY OF CUYAHOGA
December 18, 2014
2014-Ohio-5551
JOURNAL ENTRY AND OPINION; Criminal Appeal from the Cuyahoga County Court of Common Pleas, Case No. CR-88-234906-A
Richard Agopian
ATTORNEYS FOR APPELLEE
Timothy J. McGinty Cuyahoga County Prosecutor Daniel T. Van Assistant County Prosecutor The Justice Center - 8th Floor 1200 Ontario Street Cleveland, Ohio 44113
{¶1} Defendant-appellant, Gerald Van Buskirk (“Van Buskirk“), appeals his sexual predator and habitual sexual offender classifications. For the reasons set forth below, we affirm his sexual predator classification and vacate his habitual sexual offender classification.
{¶2} In February 1989, Van Buskirk was charged with three counts of rape and one count of kidnapping. Each count carried a prior aggravated felony specification. The facts underlying these charges were set forth by this court in Van Buskirk‘s previous appeal, State v. Van Buskirk, 8th Dist. Cuyahoga No. 57800, 1994 Ohio App. LEXIS 4409. On December 14, 1988, the victim was introduced to Van Buskirk by a mutual aсquaintance. The acquaintance suggested that the three of them go to a bar. At the end of the night, they left the bar together and Van Buskirk was to give the mutual acquaintance and the victim a ride home. Van Buskirk dropped off the acquaintance and then took the victim tо his apartment in Lakewood. The victim repeatedly asked to be taken home. Van Buskirk told the victim that he wanted to show her his apartment, so she accompanied him inside. Once inside, Van Buskirk hit the victim and repeatedly raped her. Id.
{¶3} The matter proceeded tо a jury trial in April 1989, at which he was found guilty of all counts. At sentencing, the trial court found kidnapping to be an allied offense and sentenced him to three consecutive terms of 14 to 25 years in prison.
{¶4} In December 1996, Van Buskirk filed his delayed appeal. In his appeal, Van Buskirk challenged his convictions, defense counsel‘s effectiveness, and alleged prosecutorial misconduct. We affirmed the judgment of the trial court, finding sufficient evidence to sustain his convictions, defense counsel was effective, and no prosecutorial misconduct.
{¶6} At the March 2014 hearings, the trial court indicated that Van Buskirk and all other parties had received notice of the H.B. 180 hearing, and all parties waived any defects in the notification of the H.B. 180 hearing.1 The trial court indicated that it received records from the Department of Rehabilitation and Cоrrection and the court‘s clinic evaluation. Defense counsel stipulated to both reports. The state offered exhibits into the record, including journal entries indicating prior convictions for rape in 1981, attempted rape in 1979, and aggravated assault in 1972.
{¶7} The state аrgued that the Static-99 score placed him at the moderately high risk of reoffending, taking into account Van Buskirk‘s age, and if that was not taken into account, then he was at a high-risk category. The state noted Van Buskirk‘s history of substance abuse issues, his failure to complete treatment, and Van Buskirk‘s diagnosis of antisocial personality disorder.
{¶8} The trial court stated that it reviewed the file. The court noted the nature of the offense, his prior convictions, the Static-99 score, and Van Buskirk‘s lengthy criminal history, which included rape, attempted rape, aggravated assault, and parole and probation violations. The trial court found that Van Buskirk was a sexual predator and, at a minimum, an habitual sexual offender.
{¶9} Van Buskirk now appeals, raising the following four assignments of error for review, which shall be discussed together where appropriate.
The trial court erred by finding that [Van Buskirk] was both a[n] habitual sex offender and a sexual predator.
Assignment of Error Two
The evidence is insufficient, as a matter of law, to prove by clear and convincing evidence, that [Van Buskirk] is “likely to engage in the future in one or more sexually oriented offenses.”
Assignment of Error Three
The trial court was without jurisdiction to conduct a sexual predator hearing.
Assignment of Error Four
The finding that [Van Buskirk] was a sexual predator is against the manifest weight of the evidence.
Dual Sex Offender Classification
{¶10} In the first assignment of error, Van Buskirk argues that the trial court erred by finding him to be both an habitual sexual offender and a sexual predator. The state concedes that the habitual sexual offender determination was “extraneous.”
{¶11} In the instant case, the trial court proceeded, at the request of the state, to find Van Buskirk an habitual sexual offender in additiоn to finding him a sexual offender. This court has previously addressed this issue in State v. George, 8th Dist. Cuyahoga No. 86487, 2006-Ohio-1100. In George, the trial court found the defendant to be an habitual sexual offender and a sexual predator. We found that since the defendant was convicted prior to 1997, the trial court was bound by the dictates of
{¶12} Likewise, in the instant case, the trial court was bound by the dictates of
{¶13} The first assignment of error is sustained.
Sexual Predator Classification
{¶14} In the second and fourth assignments of error, Van Buskirk challenges his sexual predator classification. He argues there was no evidence presented, which would have been sufficient to maintain a finding by clear and convincing evidence that he was a sexual predator.
{¶15} In State v. Wilson, 113 Ohio St.3d 382, 2007-Ohio-2202, 865 N.E.2d 1264, the Ohio Supreme Court held that
[b]ecause sex-offender-classification proceedings under
R.C. Chapter 2950 are civil in nature, a trial court‘s determination in a sex offender classification hearing must be reviewed under a civil manifest-weight-of-the-evidence standard and may not be disturbed when the trial judge‘s findings are supported by some competent, credible evidence.
Id. at syllabus.
{¶16} The civil manifest weight of the evidence standard “аffords the lower court more deference than the criminal standard.” Id. at ¶ 26. “Thus, a judgment supported by ‘some competent, credible evidence going to all the essential elements of the case’ must be affirmed.” Id., citing C.E. Morris Co. v. Foley Constr. Co., 54 Ohio St.2d 279, 376 N.E.2d 578 (1978).
{¶18} “Clear and convincing evidence is evidence that ‘will produce in the mind of the trier of facts a firm belief or conviction as to the facts sought to be established.‘” Id., quoting Cross v. Ledford, 161 Ohio St. 469, 120 N.E.2d 118 (1954), paragraph three of the syllabus. The “clear-and-convincing standаrd requires a higher degree of proof than a ‘preponderance of the evidence,’ but less than ‘evidence beyond a reasonable doubt.‘” Id., quoting State v. Ingram, 82 Ohio App.3d 341, 346, 612 N.E.2d 454 (2d Dist.1992).
{¶19} In making its determination as to whether an offender is a sexual predator, the trial court must consider all relevant fаctors to determine whether the individual is likely to engage in future sex offenses. These factors include, but are not limited to, the offender‘s age and prior criminal record; the age of the victim; whether the sex offense involved multiple victims; whether the offender used drugs or alсohol to impair the victim of the sex offense; if the offender has previously been convicted of or pleaded guilty to any criminal offense; whether the offender completed a sentence for any conviction and, if a prior conviction was for a sеx offense, whether the offender participated in any available program for sex offenders; whether the offender demonstrated a pattern of abuse or displayed cruelty toward the victim; any mental illness or disability of the offender; and any other behaviorаl characteristics that contribute to the sex offender‘s conduct.
{¶21} Applying
the rape was violent based on the scenario that I read. [Van Buskirk] struck her, damaged her glasses, and threatened to hurt her if she did not cooperate with sexual intercourse. And for approximately a three hour period, this defendant had oral, vaginal, and anal sex with the victim. He made her lay on her side so he could attempt sexual intercourse so he could get an erection.
{¶22} The Static-99 placed him at a high risk for reoffending. However, with his age factored in, he was then placed in the moderately high risk for reoffending. His score was equated with the following determination for recidivism: Van Buskirk is 39 percent likely to commit another sexual offense within five years, 45 percent more likely to commit another
{¶23} Thus, after reviewing the record, including Van Buskirk‘s age, prior criminal history, lack of treatment, mental illness, the Static-99 results and recidivism factors as applied to
{¶24} Accordingly, the second and fourth assignments of error are overruled.
Jurisdiction
{¶25} In the third assignment of error, Van Buskirk argues the trial court was without jurisdiction to conduct a sexual predator classification hearing.
{¶26} Under
{¶27} Van Buskirk argues that because the Department of Rehabilitation and Correction did not initiate the proceedings as required by
{¶28} Here, the record indicates that the trial court requested an “H.B. 180 packet” from the facility where Van Buskirk was incarcerated as well as Van Buskirk‘s prison file. At the sexual predator hearing, the trial court stated that all parties had received nоtice of the H.B. 180 hearing and all parties waived any defects in the notification of the H.B. 180 hearing. Furthermore, the trial court noted at the hearing and in a journal entry that it was in receipt of the February 2014 Adult Parole Authority‘s “notice of offender‘s hearing.” The court imposed its сlassification after due consideration of all relevant factors and opposed any modification or reduction in Van Buskirk‘s sentence. Based on the foregoing, we presume regularity and conclude that the court was within its jurisdiction to conduct the sexual prеdator hearing.
{¶29} The third assignment of error is overruled.
{¶30} Accordingly, Van Buskirk‘s sexual predator classification is affirmed, and his habitual sexual offender classification is vacated.
It is ordered that appellant recover from appellee costs herein taxed.
The court finds there were reasоnable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the common pleas court to carry this judgment into execution.
MARY EILEEN KILBANE, PRESIDING JUDGE
PATRICIA ANN BLACKMON, J., and EILEEN T. GALLAGHER, J., CONCUR