The State of Ohio, Appellant, v. Eppinger, Appellee.
No. 99-788
Supreme Court of Ohio
Submitted December 12, 2000—Decided March 28, 2001.
91 Ohio St.3d 158 | 2001-Ohio-247
LUNDBERG STRATTON, J.
Criminal law—Sexual predators—Expert witness shall be provided to an indigent defendant at an R.C. 2950.09(B)(1) sexual offender classification hearing, when. APPEAL from the Court of Appeals for Cuyahoga County, No. 72686.
An expert witness shall be provided to an indigent defendant at an
LUNDBERG STRATTON, J.
{¶ 1} In 1988, Lewis Eppinger, defendant-appellee, wаs indicted on three counts of rape, one count of kidnapping, and one count of felonious assault. Defendant entered a plea of not guilty to the charges, but a jury convicted him of two counts of rape in violation of
{¶ 3} The trial court denied all three motions. In denying the motion for appointment of a psychological/psychiatric expert, the court noted, “the Court denies that motion and finds that neither expert is competent to predict the future conduct of the individual and will take the testimony of a gypsy over those people in attempting to predict the future conduct of an individual.
{¶ 4} “Therefore, I‘m not going to permit the expenditure of state funds.”
{¶ 5} At the hearing, after infоrming the court that there had been no presentence report, the prosecutor recited the facts of the underlying case and information regarding defendant‘s convictions for aggravated robbery and felonious assault predating the rape. After hearing the facts, the trial court stated, “I wonder if I wasn‘t the Judge who presided at that trial.” The state acknowledged that the trial judge had, in fact, presided at defendant‘s rape trial.
{¶ 6} Defense counsel stated that he was being denied the opportunity to cross-examine or confront witnesses due to the state‘s mere recitation of the facts and the denial of the motion for appointment of an expert. After a hearing that is recorded in seven and one-half pages of transcript, the trial court concluded, “I had an opportunity to preside over the trial of this matter, and to my mind and recollection it was, again, rape, which I consider to be a heinous form of rape. It was violence over a period of time.
{¶ 7} “Taken in conjunction with the defendant‘s background and history, I am going to find that he is a sexual predator.”
{¶ 9} The cause is now before this court upon the allowance of a discretionary appeal.
{¶ 10} This case presents us with two more questions regarding
{¶ 11} The very first Megan‘s Law,
Calling and Examining Witnesses and Expert Witnesses
{¶ 12} In setting forth the procedural requirements for sexual offender classification hearings,
“At the hearing, the offender and the prosecutor shall have an opportunity to testify, present evidence, call and examine witnesses and expert witnesses, and cross-examine witnesses and expert witnesses regarding the determination as to whether the offender is a sexual predator. The offender shall have the right to be represented by counsel and, if indigent, the right to have counsel appointed to represent the offender.”
{¶ 13} The court of appeals concluded that the trial court‘s denial of this indigent defendant‘s request for appointment of an expert psychologist or psychiatrist to evaluate him prior to the hearing effectively precluded defendant from presenting evidence on his own behalf on the issue of whеther he is “likely to engage in the future in one or more sexually oriented offenses.” The court of appeals held that the statute was clear and unambiguous in its provision mandating that the offender shall have the opportunity to testify, present evidence, and call, examine, and cross-examine witnesses, including expert witnesses. Further, the court concluded that the trial court‘s denial was so prejudicial that it amounted to plain error. We agree, in part.
{¶ 14}
{¶ 15} Once a person is designated a sexual predator,
{¶ 16} This court has already recognized that these requirements have grave consequences. “At a sexual offender classification hearing, decisions are made regarding classification, registration, and notification that will have a profound impact on a defendant‘s life.” State v. Gowdy (2000), 88 Ohio St.3d 387, 398, 727 N.E.2d 579, 589.
{¶ 17} We noted in Gowdy the danger of making the sexual offender classification hearing perfunctory in nature, which would deny defendant the rights guaranteed him under the statute. Id. at 398, 727 N.E.2d at 589. So, too, would denying an indigent defendant, under these circumstances, the “opportunity to testify, present evidence, call and examine witnesses and expert witnesses, and cross-examine witnesses and expert witnessеs regarding the determination as to whether the offender is a sexual predator.”
{¶ 18} In some instances, offenders will have several sexually oriented convictions, or will clearly fit a variety of the factors listed in
{¶ 19} We disagree with the court of appeals that such an appointment is mandatory. Instead, we hold that an expert witness shall be provided to an indigent defendant at an
{¶ 20} Here, the transcript of the sexual offender classification hearing reveals that the trial court denied the motion for appointment of an expеrt, stating that the court would “take the testimony of a gypsy over those people
{¶ 21} Because “the State must, as a matter of equal protection, provide indigent prisoners with the basic tools of an adequate defense * * * when those tools are available for a price to other prisoners,” Britt v. North Carolina (1971), 404 U.S. 226, 227, 92 S.Ct. 431, 433, 30 L.Ed.2d 400, 403, it follows that the defendant would also be entitled to an expert provided at state expense in order to avail himself or herself of the statutory right to present witnesses on his or her own behalf. Further, cross-examination and nonexpert witness testimony are not always helpful to the indigent defendant when the central issue involves predicting future behavior—something only an expert can do, absent a history of similar offenses or other indicators.
{¶ 22} Because this defendant had been convicted of only one sexually oriented offense, a psychiatric or psychological expert or other expert in the science of predicting human sexual behavior was reasonably necessary to aid in determining whether the defendant is likely to engage in one or more sexually oriented offenses in the future. Accordingly, we affirm the court of appeals’ decision to instruct the trial court on remand to reconsider defendant‘s sexual offender classification by holding a new hearing, giving the defendant the opportunity to present and cross-examine witnesses and present evidence on his own behalf, including an expert witness, as requested by the defendant, and by
Sufficiency of the Evidence
{¶ 23} As previously noted, at the sexual оffender classification hearing, in order for the offender to be designated a sexual predator, the state must prove by clear and convincing evidence that the offender has been convicted of a sexually oriented offense and that the offender is likely to engage in the future in one or more sexually oriented offenses.
{¶ 24} The General Assembly supplied the trial court with several factors to consider in making this weighty decision.
“In making a determination * * * 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;
“(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 interactiоn 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.”
{¶ 25} As noted by the court of appeals, “[c]lear and convincing evidence is that measure or degree of proof which will produce in the mind of the trier of facts a firm belief or conviction as to the allegations sought to be established. It is intermediate, being more than a mere preponderance, but not to the extent of such certainty as is required beyond a reasonable doubt as in criminal cases. It does not mean clear and unequivocal.” Cross v. Ledford (1954), 161 Ohio St. 469, 477, 53 O.O. 361, 364, 120 N.E.2d 118, 123.
{¶ 26} The court of appeals observed that eight of the statutory factors involve what may be considered “old conviction data,” which may be found in the court‘s file. Yet, at defendant‘s hearing, the state simply recited into the record its own recollection of the facts of the underlying offensе from the trial, which had occurred eight years earlier. The trial court did not review the trial transcript. The trial court did not review the opinion of the court of appeals on direct appeal. The trial court did not review any presentence investigation reports, nor did it review the defendant‘s criminal record. The trial court did not review any documentary evidence, nor did it hear from any witnesses on either side. The trial court even had to seek clarification on whether it had heard the underlying case.
{¶ 27} In fact, the trial court simply stated, “I had an opportunity to preside over the trial of this matter, and to my mind and recollection it was, again, rape,
{¶ 28} “Taken in conjunction with the defendant‘s background and history, I am going to find that he is a sexual predator.” Further, the entry of the trial court reflects that “[d]efendant is found to be a sexual predator in light of the nature of the underlying sexual offense for which the defendant had been convicted.”
{¶ 29} In reversing the defendant‘s designation as a sexual predator, the court of appeals concluded that “[defendant‘s] prior сonvictions do not include sexually oriented offenses; the single victim in this case was an adult; the underlying sexual offense took place more than ten years ago; there is no evidence shown to indicate that [defendant] used drugs or alcohol to impair the victim; there was no demonstration of a pattern of abuse; and there was no evidence presented to show behavioral characteristics of [defendant] contributing to his conduct or to indicate a mental illness or disability.” We agree.
{¶ 30} We find that the trial court abused its discretion in denying the dеfendant‘s request for an expert witness and in essentially adjudicating defendant a sexual predator on the basis of one factor (nature of the sexual conduct). Moreover, the trial court‘s “recollection” that defendant‘s crime was “heinous” was simply insufficient to show that defendant was likely to commit another sexually oriented offense.
{¶ 31} Although certainly even one sexually oriented offense is reprehensible and does great damage to the life of the victim,
{¶ 32} Instead of deciding whether the offender is particularly deserving of punishment, the issue presented to the court at a sexual offender classification hearing is whether the defendant is likely to commit future sexually oriented offenses. Not only is this determination problematic for the trial court to make, but it is certainly confounding to review on appeal without an adequate record. Accordingly, we believe that trial courts, prosecutors, and defense attorneys should adhere to some basic standards to meet the criteria required in an
{¶ 33} In a model sexual offender classification hearing, there are essentially three objectives. First, it is critical that a record be created for review. Therefore, the prosecutor and defense counsel should identify on the record those portions of the trial transcript, victim impact statements, presentence report, and other pertinent aspeсts of the defendant‘s criminal and social history that both relate to the factors set forth in
{¶ 34} Second, an expert may be required, as discussed above, to assist the trial court in determining whether the offender is likely to engage in the future in
{¶ 35} Finally, the trial court should consider the statutory factors listed in
{¶ 36} We are cognizant of our statement in State v. Cook, supra, that
{¶ 37} As we observed above, under certain circumstances, it is possible that one sexually oriented conviction alone can support a sexual predator adjudication. However, the scant “evidence” presented at this sexuаl offender classification hearing fell short of establishing by clear and convincing evidence that the defendant was likely to engage in one or more sexually oriented offenses in the future.
{¶ 38} Accordingly, we affirm that portion of the court of appeals’ judgment that directed the trial court on remand to consider “all parts of the record
Judgment affirmed as modified.
F.E. SWEENEY and PFEIFER, JJ., concur.
MOYER, C.J., concurs except that he joins Part I of COOK, J.‘s opinion concurring in part and dissenting in part.
DOUGLAS and RESNICK, JJ., concur in syllabus and judgment.
COOK, J., concurs in part and dissents in part.
COOK, J., concurring in part and dissenting in part.
{¶ 39} For the following reasons, though I join the majority‘s syllabus and would also affirm the judgment of the court of appeals as modified, I would not modify the court of appeals’ judgment in the same manner as the majority and respectfully decline to join the majority‘s opinion.
I
{¶ 40} The majority states that “[a]lthough * * *
II
{¶ 41} The majority concludes that “[b]ecause this defendant had been convicted of only one sexually oriented offense, a psychiatric or psychological expert or other expert * * * was reasonably necessary to aid in determining whether the defendant is likely to engage in one or more sexually oriented offenses in the future.” Accordingly, the majority remands the cause, instructing the trial court on remand to grant Eppinger‘s request for an expert. Though I agree that the trial court abused its discretion when it arbitrarily denied Eppinger‘s request on the basis of a personal bias against such experts (compаring them to “gypsies“), I would remand the cause to the trial court with instructions to apply the standard announced in today‘s syllabus. That is, the trial court should be given the opportunity to properly exercise its discretion by applying today‘s standard in order to determine whether expert assistance is reasonably necessary in this case. The exercise of sound discretion may lead the trial court to decide that an expert is necessary. But that is the trial court‘s decision to make in the first instance, not ours.
{¶ 42} Finally, having decided to remand the case to aрpoint an expert and conduct a new hearing, the majority then adopts a “model” procedure for a classification hearing and concludes that “the scant ‘evidence’ presented at [Eppinger‘s] sexual offender classification hearing fell short” of the clear and convincing evidentiary standard. But because we are remanding this cause for a new classification hearing, and because the majority requires the appointment of an expert at that new hearing, there is no need for this court to test the legal sufficiency of thе evidence presented at the faulty hearing. Accordingly, though I agree in principle with many aspects of the “model hearing” described by the Cuyahoga County Court of Appeals in State v. Thompson (Apr. 1, 1999), Cuyahoga App. No. 73492, unreported, 1998 WL 1032183, the second half of the majority‘s opinion is essentially an advisory opinion. “It has become settled judicial responsibility for courts to refrain from giving opinions on abstract propositions and to avoid the imposition by judgment of premature declarations or advice upon potential controversies.” Fortner v. Thomas (1970), 22 Ohio St.2d 13, 14, 51 O.O.2d 35, 257 N.E.2d 371, 372.
{¶ 43} For the foregoing reasons, I join today‘s syllabus and would affirm the court of appeals’ judgment, but only insofar as it remanded the cause for a new classification hearing, at which time the trial court should be given an opportunity to exercise its discretion to determine whether the services of an expert are reasonably necessary to determine whether Eppinger is likely to engage in the future in one or more sexually oriented offenses.
William D. Mason, Cuyahoga County Prosecuting Attorney, and Michael D. Horn, Assistant Prosecuting Attorney, for appellant.
David H. Bodiker, State Public Defender, and Christa M. Hohmann, Assistant State Public Defender, for appellee.