2005 Ohio 2441 | Ohio Ct. App. | 2005
Lead Opinion
{¶ 2} Edwards now appeals the trial court's determination that he is a sexual predator. He contends that the evidence adduced at the sexual offender classification hearing was insufficient to establish by clear and convincing evidence that he is a sexual predator. In addition, he argues that the trial court did not discuss the appropriate factors on the record in making its determination. Finding merit to Edwards' appeal, we vacate the judgment of the trial court classifying Edwards as a sexual predator and remand this matter to the trial court with direction to label this offender a sexually oriented offender as provided by law, and to make a finding that he is not an habitual sexual offender. SeeState v. Gopp,
{¶ 3} R.C.
{¶ 4} "The sexual predator determination requires * * * evidence the offender is likely to engage in the future in one or more sexually oriented offenses. Not only must it be probable (more likely than not) that such a future offense will occur, but such likelihood must be proven by the heightened standard of clear and convincing evidence." State v.Arthur (Aug. 16, 2001), Cuyahoga App. No. 77770. In order to satisfy this standard, "there must be something of substance from which one could draw a logical conclusion concerning the likelihood of recidivism to reach a firm belief or conviction that defendant is likely to commit a sexually oriented offense in the future." Id. at 10.
{¶ 5} Where the proof must be clear and convincing, an appellate court examines the record to determine whether sufficient evidence exists to satisfy the requisite degree of proof. State v. Schiebel (1990),
{¶ 6} In determining whether a sex offender is a sexual predator, a judge shall consider all relevant factors to determine whether the individual is likely to engage in future sex offenses. See R.C.
{¶ 7} The trial court is to consider the statutory factors listed in R.C.
{¶ 8} At the sexual offender classification hearing in this case, the State presented a sexual predator evaluation completed by Dr. George W. Schmedlen, a psychologist with the Court Psychiatric Clinic, shortly before the hearing. The report indicated that Schmedlen had interviewed Edwards for approximately one and onehalf hours and had given him the Static-99 Test, an actuarial instrument used to assess the risk for sexual reoffending. Edwards' score on the Static-99 was in the low-medium risk category, which equated to an actuarially-determined recidivism rate of 26% in five years, 31% in ten years and 36% in 15 years. Schmedlen's report also indicated that although Edwards presented with three risk factors significantly correlated with sexual offense recidivism, he did not present with any of six other factors associated with sexual offense recidivism.
{¶ 9} The State also presented a presentence investigation report completed by the Probation Department. This report listed Edwards' prior arrests and convictions, including a domestic violence charge in 2003, of which the disposition is unknown, and a conviction in 1992 for aggravated robbery and felonious assault. The victim's statement regarding the 1992 aggravated robbery and felonious assault, presented by the State at the hearing, indicated that Edwards came up behind the victim as she was walking and knocked her to the ground. The victim reported that Edwards then "just kept hitting and kicking" her so she would let go of her purse.
{¶ 10} The State also presented the statement of Tamika Moss, the 25-year-old victim of Edwards' rape offense. Moss reported that she, her friend and Edwards were in her friend's apartment late one evening. After the friend left, Edwards and Moss, who were sitting near each other on the floor, began talking about sex. When Edwards asked Moss if he could have sex with her, Moss reportedly told him no. He began kissing her between her legs and then rolled her over and anally raped her. Moss stated that Edwards did not cause her any bodily harm other than the rape, but she was afraid because Edwards "had an angry look on his face" and told her she "better just lay there and take it."
{¶ 11} In finding Edwards to be a sexual predator, the trial judge noted that she had considered the sexual predator evaluation. She noted further that the victim was a stranger to Edwards, he used force in committing the rape and "does not take responsibility for his actions." The court also noted that Edwards had been convicted of prior crimes and although none had involved sex offenses, some were violent in nature, including the assault charge. The trial judge also noted that Edwards' "relationships have been relationships without commitment. He has fathered five children with no commitments to any of the mothers of any of those children." The trial judge also found that although Edwards did not have a current substance abuse problem, it remained a risk for him. The trial judge concluded:
{¶ 12} "The court, looking at the totality of the circumstances, finds that it is clear and convincing that this defendant may indeed offend in a sexual manner again and, therefore, will find him to be a sexual predator."
{¶ 13} Whether a defendant "may indeed" reoffend in the future is not the standard for a sexual predator determination, however. Rather, the evidence must be clear and convincing that the defendant "is likely" to engage in another sexually oriented offense. After reviewing the record and applying the factors listed in the statute, we conclude that the evidence does not clearly and convincingly support a sexual predator determination in this case. The first factor set forth in R.C.
{¶ 14} The next factor is the victim's age. Moss was twentyfive years old at the time of the rape. As this court noted in State v. Chancellor, Cuyahoga App. No. 80321, 2003-Ohio-4932, the statute addresses the age of the victim to especially protect children who are victims of sexual offenses. Therefore, this factor, as applied to Edwards, does not favor the sexual predator classification. Furthermore, although the State asserted at the hearing that the victim was "educationally-challenged," there is no evidence in the record to support this assertion.
{¶ 15} Other factors listed in the statute similarly do not support a sexual predator determination: there was only one victim in this case, R.C.
{¶ 16} Moreover, although the trial judge relied on Edwards' prior criminal convictions in finding him to be a sexual predator, R.C.
{¶ 17} Likewise, we do not find it relevant to a sexual predator determination whether Edwards has fathered children with women he has not married or with whom he no longer has a relationship. Although this may indeed be a "behavioral characteristic" of Edwards, see R.C.
{¶ 18} As this court stated in State v. Arthur (Aug. 16, 2001), Cuyahoga App. No. 77770:
{¶ 19} "Predicting the future is subject to uncertainty. We do not require unattainable perfection. But, even within the limits attendant to that task, the evidence must furnish a basis for logically choosing between two alternative possibilities. The clear and convincing standard does not permit mere conjecture or speculation."
{¶ 20} Here, the trial court's conclusion, on this evidence, that Edwards "may indeed" sexually reoffend in the future is nothing more than speculation. On this record, there is not clear and convincing evidence to support "a firm belief or conviction that defendant is likely to commit a sexually oriented offense in the future," Arthur, supra, nor is there any evidence that he is an habitual sexual offender.
{¶ 21} Accordingly, the judgment of the trial court classifying Edwards as a sexual predator is vacated. "This vacation of the sexual predator status does not in any way change the fact that the appellant is a sexually oriented offender as a matter of law." State v. Grider
(2001),
{¶ 22} In light of our resolution of appellant's first assignment of error, we need not consider his second assignment of error. See App.R. 12(A)(1)(c).
Vacated; remanded to the trial court to enter an order that appellant is a sexually oriented offender, but not an habitual sexual offender.
It is, therefore, ordered that appellant recover from appellee costs herein.
It is ordered that a special mandate be sent to said court to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure.
Blackmon, P.J. and Gallagher, J., dissents with separate dissentingopinion.
Dissenting Opinion
{¶ 23} I respectfully dissent from the majority decision to vacate the trial court's classification of Edwards as a sexual predator. I would affirm the decision of the trial court and maintain the sexual predator classification.
{¶ 24} The majority opinion properly outlines the law and facts relative to Edwards' classification. I simply disagree with the view that there is insufficient evidence under the clear and convincing standard to establish that Edwards is likely to reoffend. The statutory factors were evaluated by the trial court. The court based its decision largely on two of those factors: first, the defendant's prior record under R.C.
{¶ 25} Nevertheless, in my view, the best indicator of future behavior is past conduct. Thus, based on Edwards' past criminal history, coupled with the absence of remorse or responsibility, there is clear and convincing evidence that the offender is likely to reoffend by committing a subsequent sexually oriented offense. Last, while the trial court used the term "may indeed" reoffend rather than "is likely" to reoffend, I do not see this as fatal to the trial court's determination. For these reasons, I would affirm the classification.
