2003 Ohio 6208 | Ohio Ct. App. | 2003
{¶ 2} Because the record contains clear and convincing evidence to support the trial court's sexual predator adjudication, we disagree with appellant. Additionally, because the record shows that the trial court complied with the statutory sentencing procedures and properly exercised its discretion in electing to impose a four-year prison term, we disagree with appellant that his four-year prison term is contrary to law. Therefore, we overrule appellant's assignments of error and affirm the trial court's judgment.
{¶ 3} In June of 2000, the Washington County Grand Jury returned an indictment that charged the seventy-year-old appellant with two counts of gross sexual imposition involving a female under the age of thirteen, in violation of R.C.
{¶ 4} In entering his no contest plea, appellant stipulated to the following facts: "During the summer of 1999 the child of a tenant was at [appellant's] house. During the time that she was there * * * [appellant] touched the vaginal lips of this child for purposes of sexual gratification."
{¶ 5} Following his no contest plea, the trial court held a combined sentencing and sexual predator hearing. At that hearing, appellant claimed that he pled no contest because he was afraid that his wife would have a "nervous breakdown," if the case went to trial. In explaining the incident when he touched the victim's vagina, appellant stated that the victim had pulled down her pants to show him moles or birthmarks and that he inadvertently touched her vagina when he helped her pull up her pants. Appellant asserted that during the taped confession with a sheriff's detective, he was confused and he did not intend to admit that he touched the victim for purposes of sexual gratification.
{¶ 6} In December of 2000, the trial court adjudicated appellant a sexual predator and sentenced him to four years in prison. The court noted that the gross sexual imposition conviction was appellant's first felony conviction but determined that the shortest prison term was not appropriate "because a shorter sentence would demean the seriousness of the offense and the impact upon the victim."
{¶ 7} Appellant then appealed the trial court's sexual predator adjudication and sentence. We reversed the court's judgment adjudicating appellant a sexual predator because the record did not contain clear and convincing evidence to show that appellant is likely to re-offend. We also made reference to the model sexual predator classification hearing guidelines set forth in State v. Eppinger (2001),
{¶ 8} We also reversed and remanded the trial court's judgment sentencing appellant to four years imprisonment. We determined that the record did not indicate that the court considered either R.C.
{¶ 9} Following our remand, the trial court conducted another sexual predator classification and sentencing hearing. At the hearing, the victim's mother stated that she and her family rented a house from appellant and that appellant became "like a grandpa" to her children. She explained that the children frequented his home and appellant would take them for walks, drives in the country, and to K-Mart to buy toys. In May of 1998, the family moved from appellant's house and did not inform appellant where they were moving. Appellant, however, located the family's new home and continued to visit with the children. The family moved two more times, and each time, appellant discovered where they had moved and continued visiting with the children.
{¶ 10} The victim's mother stated that the victim has "not been doing real good" since the investigation began. She explained that the victim was held back in school, was distant, and lost concentration in class. She further stated that the victim is "petrified" of appellant.
{¶ 11} Appellant retained a psychologist, Dr. J. Michael Harding, to evaluate his recidivism risk for sexually oriented offenses. Dr. Harding administered the Minnesota Sex Offender Screening Tool — Revised (MnSORT-R), an actuarial tool developed around 1996 for measuring the recidivism risk for sexually oriented offending that is standardized on sex offenders being held and/or released from the Minnesota Correctional System. The test has followed offenders for four to six years. Appellant scored a negative five, the lowest possible score. According to Dr. Harding, appellant's score "falls at the lower-most limit of the Low Risk category and is associated with a recidivism risk of 16%." Dr. Harding opined that appellant's "risk of sex offense recidivism within a six-year period is 16% or less." He further stated that appellant's "history is positive for none of the twelve clinical risk factors known to be associated with sexual offending3 and only two of nine clinical risk factors specific to sexual offending."4 Thus, Dr. Harding concluded that "[appellant's] actual recidivism risk is lower than 16%." However, Dr. Harding stated that he "would be reluctant to allow a child of mine or any — any child that I was concerned about, opportunities to spend a great deal of time alone with [appellant]." He stated that if he had a young daughter and if he lived next door to appellant, he would "want to educate" his daughter, but that he would not be able to do that unless he knew of appellant's history.
{¶ 12} Washington County Sheriff's Detective Mark Warden testified that he interviewed appellant. During the interview, appellant admitted that he had touched the victim's vaginal area. He stated that he also may have touched her on other occasions, but that he could not recall them. He advised the detective that he may have touched her "several" times, but he "never made a habit of it." He gave the following explanation for the one occasion that he recalled: The victim pulled down her pants to show appellant her birthmarks; he touched her vagina, explaining that he "was just caressing her, whatever." He stated that he "suppose[d]" he felt pleasure from touching her. When the detective questioned appellant whether the victim's statement that appellant placed his finger inside her vagina was possible, appellant stated that he would not "intentionally" have done such a thing.
{¶ 13} At the conclusion of the hearing, the trial court found appellant to be a sexual predator. To support its sexual predator finding, the court determined that the following evidence showed clearly and convincingly that appellant is likely to re-offend: (1) the victim was between six and nine at the time of the offense; (2) appellant was in his late sixties; (3) the nature of appellant's conduct — specifically, that he "exhibited a pattern whereby he cultivated a relationship with the victim to the point that they were as close as grandparents and grandchildren are, that [appellant] took advantage of and used this close, almost familial relationship, and `groomed' the victim"; (4) appellant minimized and denied his deviant behavior; (5) appellant attempted to blame the victim, calling her "promiscuous"; (6) appellant appeared to have an unhealthy relationship with the victim as shown by his tree-carving of a heart that contained her initials; and (7) appellant actively pursued the victim by re-locating her family after they had moved. The trial court noted the opinion of appellant's expert but determined that "the testing on which the report's conclusions were based were relatively new and had not been proven over a lengthy period of time and that the studies were not sufficiently conclusive."
{¶ 14} The court then conducted the sentencing hearing. At that hearing, the victim's mother testified that appellant's actions have "damaged [the victim] in a way she may never heal." The victim's mother explained that she trusted appellant and that he perverted that trust.
{¶ 15} The trial court subsequently sentenced appellant to four years imprisonment. In so doing, the court considered the seriousness and recidivism factors set forth in R.C.
{¶ 16} The court determined that appellant's poor health and his significant law-abiding life indicated that he is less likely to recidivate. Nevertheless, the trial court determined that a prison term is consistent with the purposes and principles of sentencing.
{¶ 17} The court noted that this was appellant's first felony conviction, but determined that the minimum sentence would demean the seriousness of the offense and the impact upon the victim and that the minimum sentence would not adequately protect the public from future crime. The court stated that "the victim and her family have suffered significant harm in that the victim has been required to undergo counseling and the family was required to move away from [appellant]." It also noted that "the victim and her family suffered significant harm from the betrayal by [appellant] because of their trust in [appellant]."
{¶ 18} Appellant timely appealed the trial court's judgment and raises the following assignments of error: "FIRST ASSIGNMENT OF ERROR — Mr. Longnecker's right to due process was denied when the trial court adjudicated him a sexual predator, when that finding was against the manifest weight of the evidence. SECOND ASSIGNMENT OF ERROR — The trial court violated Mr. Longnecker's right to due process, and erred as a matter of law, when it sentenced him to prison, and for more than the minimum sentence, absent evidence supporting the findings."
{¶ 20} Under R.C.
{¶ 21} Here, the trial court chose to classify appellant as a sexual predator. As previously stated, a sexual predator is a person who has been convicted of, or pled guilty to, committing a sexually oriented offense and is likely to engage in the future in one or more sexually oriented offenses. R.C.
{¶ 22} "Clear and convincing evidence" is evidence that will produce in the mind of the trier of fact a firm belief or conviction as to the facts sought to be established. See, e.g., id.; Cross v. Ledford
(1954),
{¶ 23} When reviewing whether "clear and convincing evidence" supports the trial court's decision, we must examine the record and ascertain whether sufficient evidence exists to meet this burden of proof. See In re Adoption of Holcomb (1985),
{¶ 24} Former R.C.
{¶ 25} Although R.C.
{¶ 26} Thus, a court is under no obligation to "tally up" the R.C.
{¶ 27} Additionally, a trial court should discuss on the record the particular evidence and factors upon which it relies to support its decision that recidivism is likely. Eppinger,
{¶ 28} In this case, appellant asserts that the evidence does not clearly and convincingly show that he is likely to re-offend. He argues that Dr. Harding's report and testimony show that he has an extremely low risk of committing future sexually oriented offenses and that, in the face of this evidence, the trial court incorrectly determined that he has a likelihood of re-offending. We disagree. "Whether an offender is likely to re-offend sexually is not bound by or couched in terms of recidivism test results, but is instead defined by the application and examination of statutory factors and consideration of relevant circumstances and evidence on a case-by-case basis." State v. Robertson (2002),
{¶ 29} Appellant next claims that the trial court should have determined that his advanced age and poor health will reduce his risk of recidivism. "While his age and physical condition may lead one to conclude that he would not have the desire or opportunity to re-offend sexually, `elderly status and poor health alone does not positively preclude a person, properly motivated, from acting out one's deviant interests.'" State v. Laury, Cuyahoga App. No. 81386, 2002-Ohio-6813; see, also, State v. Doyle, Cuyahoga App. 79981 79982, 2002-Ohio-2574. This is especially true where the perpetrator was elderly and in relatively poor health at the time of the incident. Thus, the trial court was not required to find that appellant is unlikely to recidivate due to his advanced age and poor health.
{¶ 30} Additionally, appellant's contention that the trial court improperly considered his denial of the offense and blaming of the victim is likewise unavailing. A trial court may consider a defendant's denial of the offense, failure to take responsibility for the deviancy, and blaming of the victim in entering a sexual predator finding. See Statev. Vintson (2001),
{¶ 31} Moreover, appellant's perversion of a grandfatherly relationship with the victim and the vast disparity in years between appellant and his victim further support the trial court's sexual predator finding. See, e.g., State v. Keenan, Summit App. No. 20528, 2002-Ohio-754; State v. Malone (Feb. 28, 2001), Summit App. No. 20256. Additionally, "[a]n offender who preys on children * * * may fit the pedophile profile, a class of sex offenders known for their especially high rate of recidivism." Eppinger,
{¶ 32} Appellant's remaining arguments challenging the trial court's factual findings also lack merit. Facts exist in the record to show (1) that appellant cultivated a grandfatherly relationship with the victim and then abused that relationship, (2) that appellant made a tree-carving of a heart with the victim's initials, and (3) that appellant followed the family after each move. The trial court heard the evidence and was in the best position to assign weight and credibility to it.
{¶ 33} Thus, the totality of the factors sufficiently support's the trial court's sexual predator finding. The victim was approximately sixty years younger than appellant, appellant minimized his responsibility for the offense, he blamed the victim and called her promiscuous, he allowed the victim to look up to him as a grandfather and then sexually abused her, he displayed an unhealthy attachment to the victim, and he molested a young child. Other courts have recognized these factors as valid indicators that an offender poses a recidivism risk and justifies a classification as a sexual predator.
{¶ 34} While we may have decided this case far differently, our role in this process does not permit us to substitute our judgment for that of the trial court. We decline any invitation to do so. The court applied the proper statutory framework, considered appropriate factors, and the evidence supports the trial court's findings. Accordingly, we overrule appellant's first assignment of error.
{¶ 36} A trial court's sentence may be contrary to law, and thus, appealable as of right, if the record does not support the trial court's findings. R.C.
{¶ 37} Unless the statute mandates a prison term, a sentencing court has some discretion in deciding what sanction is appropriate to satisfy the purposes and principles of sentencing. R.C.
{¶ 38} Once a trial court elects to impose a prison sentence, it must then turn to R.C.
{¶ 39} R.C.
{¶ 40} Under R.C.
{¶ 41} R.C.
{¶ 42} R.C.
{¶ 43} R.C.
{¶ 44} Here, the record does not clearly and convincingly show that the trial court's four-year prison sentence is legally inappropriate. The trial court followed the appropriate statutory procedure and substantial evidence supports its findings. The trial court considered the R.C.
{¶ 45} Next, the court found that the minimum sentence would demean the seriousness of the offense and would not adequately protect the public from future crime. In light of this finding, neither community control sanctions nor the minimum sentence would have been appropriate. Therefore, the record does not clearly and convincingly show that the trial court erred by imposing a prison sentence. Nor does the record clearly and convincingly show that the court erred by choosing to impose a four-year term. The trial court followed the proper statutory procedure, made the required findings, and evidence supports the trial court's findings. While we may have chosen to impose a lesser sentence, we may not simply substitute our judgment for that of the trial court.
{¶ 46} Accordingly, we overrule appellant's second assignment of error and affirm the trial court's judgment.
JUDGMENT AFFIRMED.
Evans, P.J. Kline, J.: Concur in Judgment and Opinion.
