State v. MangialardoState v. Mangialardo
OPINION
{¶ 1} Appellant, Marco A. Mangialardo, appeals from the April 28, 2003 judgment entry of the Lake County Court of Common Pleas, in which he was sentenced for attempted unlawful sexual conduct with a minor and labeled as a sexual predator.
{¶ 2} On December 9, 2002, appellant was indicted by the Lake County Grand Jury on threе counts of unlawful sexual conduct with a minor, felonies of the second degree, in violation of
{¶ 3} On March 21, 2003, appellant appeared in court and entered written and oral pleas of guilty to a lеsser included offense of count one, attempted unlawful sexual conduct with a minor, a felony of the third degree, in violation of
{¶ 4} A joint sexual predator and sentencing hearing was held on April 16, 2003. According to its April 18, 2003 judgment entry, the trial court classified appellant as a sexual predator.
{¶ 5} The facts emanating from the record are as follows: during the summer of 2002, appellant, who was twenty-one years old, engaged in sexual intercourse with a thirtеen-year-old girl (“the victim“) on four or five separate occasions in her bedroom. The instant charges arose on July 30, 2002, when officers from the Eastlake Police Depаrtment questioned appellant on an unrelated matter regarding a series of area thefts, at which time appellant voluntarily disclosed that he had been having sex with the viсtim.1 Appellant acknowledged that he was aware that the victim was thirteen years of age.
{¶ 6} According to the psychological evaluation conducted by licensеd clinical psychologist, John Fabian (“Dr. Fabian“), appellant had a low I.Q., suffered from mild mental retardation, and was found to be alcohol and marijuana dependent. Appellant scored a four on the Static 99 risk assessment, which placed him in the medium/high category of recidivism for sex offenses. Thus, Dr. Fabian opined that appellant posed а substantial risk for future sexual offending.
{¶ 7} Pursuant to its April 28, 2003 judgment entry, the trial court sentenced appellant to three years of community control and ordered him to serve one hundred еighty days in jail, with credit for seventy-eight days served. In addition, the trial court found appellant to be a sexual predator. It is from that judgment that appellant filed a timely notice of appeal and makes the following assignment of error:
{¶ 8} “The trial court committed reversible error when it labeled [appellant] a sexual predator against the manifest weight of the evidence.”
{¶ 9} In his sole assignment of error, appellant argues that the trial court erred by labeling him a sexual predator against the manifest weight of the evidеnce because there was no clear and convincing evidence that he was likely to commit a sexual offense in the future.
{¶ 10}
{¶ 11} In making a determination as to whether an offender is a sexual predator, the trial court must look to and consider all relevant factors pursuant to
{¶ 12} The Supreme Court of Ohio has indicated that appellate courts use a manifest weight standard to review a trial court‘s finding that an offender is a sexual predator. State v. Cook (1998), 83 Ohio St.3d 404, 426. Thus, if the trial court‘s finding that an offender is a sexual predator is supported by the weight of the evidence, then the court must also have had sufficient evidence before it to satisfy the requisite clear and convincing degree of proof. Therefore, when reviewing questions of weight, an appellate court must determine whether the state appropriately carried its burden of persuasion by engaging in a limited weighing of the evidence. State v. Davis (Dec. 31, 1998), 11th Dist. No. 97-L-246, 1998 Ohio App. LEXIS 6389, at 34.
{¶ 13} In the instant matter, because appellant pleaded guilty to a sexually oriented offense, the first prong of
{¶ 14} The trial court relied upon numerous factors under
{¶ 15} “In determining that [appellant] is a Sexual Predator within the meaning of
{¶ 16} “(a) [Appellant] is currently twenty-two (22) years of age and was twenty-one (21) yеars of age at [the] time of the instant offense.
{¶ 17} “(b) [Appellant] has a lengthy criminal record as an adult, including convictions for Falsification, Telephone Harassment, Theft, Pоssession of Marijuana, Making False Alarms, and numerous Disorderly Conduct violations. [Appellant] had a delinquency adjudication and an unruly adjudication as a juvenile. Finally, [appеllant] has a prior conviction for a sexually oriented offense, to wit: Corruption of a Minor in the Willoughby Municipal Court in 2000.
{¶ 18} “(c) The victim of the sexually oriented offense for which sеntence is being imposed was thirteen (13) years of age at the time of the instant offense.
{¶ 19} “(d) Although the sexually oriented offense for which sentence is being imposed did not involve multiple victims, there were multiple acts of sexual intercourse with the same victim in the instant case.
{¶ 20} “(f) Although [appellant] was previously convicted of a sexually oriented offense in 2000, he has not participated in any available sexual offender treatment program.
{¶ 21} “(g) [Appellant] has been diagnosed as suffering from various mental illnesses and/or disabilities, including mild mental retardation, antisocial personality disorder, learning disabilities, attention deficient disorder as a youth, depression, and pedophiliac traits.
{¶ 22} “(h) The nаture of [appellant‘s] sexual conduct with the victim of the sexually oriented offense demonstrated a pattern of activity or abuse. Specifically, [appellant] did not engage in an isolated incident of sexual conduct with the victim, but rather engaged in multiple acts of sexual intercourse with the victim over a period of time.
{¶ 23} “(j) Additional behаvioral characteristics that contribute to [appellant‘s] conduct include the following:
{¶ 24} “(1) [Appellant] was diagnosed as posing a moderate to high risk of reoffending based on actuarial testing performed by Dr. Fabian in preparation for the sexual predator hearing.
{¶ 25} “(2) Dr. Fabian diagnosed [appellant] as posing `a substantial risk’ of reoffending from an overall clinical standpoint.”
{¶ 26} The overwhelming evidence presented at the sexual predator hearing, as well as the trial court‘s foregoing cogent аnalysis regarding the applicable
{¶ 27} For the foregoing reasons, appellant‘s sole assignment of error is not well-taken. The judgment of the Lake County Court of Common Pleas is affirmed.
O‘Neill, J., Rice, J., concur.