129 Ohio App. 3d 165 | Ohio Ct. App. | 1998
Lead Opinion
Defendant, an inmate currently incarcerated at the Ross Correctional Institution, was incarcerated in April 1980 after pleading guilty to burglary. He was paroled in October 1982. In May 1983, he was indicted on one count of rape and one count of kidnapping, but was acquitted of both charges. In May 1984, he was returned to prison for a parole violation. He was again paroled in 1985.
In March 1987, defendant was indicted on two counts of kidnapping relating to an incident that occurred in November 1986. Both counts charged defendant with kidnapping "for the purpose of engaging in sexual activity." A jury ultimately found defendant not guilty of the first count of kidnapping, but instead guilty of the lesser included offense of abduction. The jury also found defendant guilty of the second kidnapping count. By entry dated August 7, 1987, the court merged the abduction and kidnapping counts and sentenced defendant to eight to ten years on the abduction count.
Defendant remained incarcerated on January 1, 1997, the date certain relevant portions of R.C.
Defendant has timely appealed and advances the following four assignments of error:
"[I]. The trial court erred in adjudicating Appellant to be a `sexual predator' when the record contains no evidence that Appellant has been convicted of a `sexually oriented offense' as defined by R.C.
"[II]. The trial court erred in applying R.C.
"[III]. The trial court erred in applying R.C.
"[IV]. The trial court's decision finding Appellant to be a `sexual predator' as defined by
By his first assignment of error, defendant contends that the trial court erred in finding him to be a sexual predator because the record contains no evidence that he has been "convicted" of a sexually oriented offense.
R.C.
"[A] person who has been convicted of or pleaded guilty tocommitting a sexually oriented offense and is likely to engage in the future in one or more sexually oriented offenses." (Emphasis added.)
R.C.
"`Sexually oriented offense' means any of the following offenses:
"(1) Regardless of the age of the victim of the offense, a violation of section
"(2) Any of the following offenses involving a minor, in circumstances specified:
"(a) A violation of section
"(b) A violation of section
"(c) A violation of division (A)(1) or (3) of section 2907.331 [pandering obscenity involving a minor] or
"(d) A violation of (A)(1) or (2) of section
"(e) A violation of division (B)(5) of section
"(3) Regardless of the age of the victim of the offense, a violation of section
"(4) A sexually violent offense;
"(5) A violation of any former law of this state that was substantially equivalent to any offense listed in division (D)(1), (2), (3), or (4) of this section;
"(6) A violation of an existing or former municipal ordinance or law of another state or the United States * * * that is or was substantially equivalent to any offense listed in division (D)(1), (2), (3), or (4) of this section;
"(7) An attempt to commit, conspiracy to commit, or complicity in committing any offense listed in division (D)(1), (2), (3), (4), (5), or (6) of this section." (Emphasis added.)
Defendant asserts that the word "convicted," as used in R.C.
Thus, the dispositive issue to be determined in this assignment of error is the meaning intended by the General Assembly by its use of the term "convicted" in R.C.
However, the Supreme Court of Ohio has not applied the restricted definition set forth in Crim.R. 32(C) and utilized inHenderson to every statute in which the term "convicted" appears. The term has been given varying meanings, depending *170
on the context in which the term is used and the General Assembly's intent, in using the term. In State v. Brantley
(1965),
"However, the language of R.C.
"Thus, the plain language of R.C.
The Watkins court noted a similar conclusion reached by the Auglaize County Court of Appeals in In re Forfeiture of One 1986Buick Somerset Auto. (1993),
"[A]n analysis of the language of the forfeiture statute * * * supports the proposition that `conviction' occurs at the time guilt is legally ascertained, and not at the point sentence is imposed. * * * [T]he statute provides that no forfeiture hearing may be held `unless the person pleads guilty to or is convicted of the commission of * * * the offense.' R.C.
As it did in R.C.
Our interpretation is bolstered by a reading of R.C.
As R.C.
Although the proceedings against defendant were conducted under the terms of R.C.
Moreover, the conclusion reached today not only preserves the operation of R.C.
Because defendant was found guilty and thus "convicted" of kidnapping "for the purpose of engaging in sexual activity," a sexually oriented offense pursuant to R.C.
As defendant's second and third assignments of error are interrelated, they will be addressed together. Initially, we note that both assignments of error contend that the trial court erred in applying R.C.
The state argues, and defendant concedes, that this court has already held that R.C.
By the fourth assignment of error, defendant contends that the trial court's determination that defendant is a sexual predator as defined in R.C.
As previously noted, R.C.
The factors set forth in R.C
"(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 interaction 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."
Although the standard set forth in R.C.
The state is required to establish an offender's future propensity by clear and convincing evidence. R.C.
Evidence presented at the hearing established that the victim and her boyfriend accompanied defendant, whom they had just met, to an after-hours bar. When the three left the bar, the boyfriend was confronted by a number of individuals who attacked him. The boyfriend eventually broke away from his attackers and ran for help.
In the meantime, the victim realized that her boyfriend was gone. Defendant told the victim that her boyfriend was safe and offered to take her to him. The victim drove defendant to a place suggested by defendant. At that time, defendant leaned over, turned off the ignition, and placed the keys on the dashboard. Defendant refused the victim's repeated requests to get out of her car.
When the victim tried to grab her keys, defendant hit her hand. He then grabbed her hair and began beating her in the face. Defendant tried to kiss her, then fondled her breasts and stroked her between her legs. At one point, defendant threatened to kill her.
The victim continued to struggle to get away by kicking open the car door. As she began to slide out of defendant's grasp, he grabbed her by the neck and began to strangle her. She finally managed to open the car door and escape. The following night, defendant was apprehended while driving the victim's car.
Other evidence offered at the hearing included the testimony of Karen Hiles, records supervisor at Ross Correctional Institution, who testified regarding defendant's prior convictions and history of incarceration.
Ellen Campbell, a psychology assistant at Ross Correctional Institution, testified that she reviewed defendant's inmate master file, interviewed defendant, and performed a psychological assessment of defendant in August 1997 on request of the parole board. Campbell testified that defendant "functions in the mildly mentally retarded range of intellectual ability," and has not participated in any sex offender counseling or any sex offender programs while incarcerated. She also stated that she reviewed investigatory reports contained in defendant's inmate master file for facts regarding defendant's 1983 arrest for kidnapping and rape. Campbell acknowledged that defendant had been acquitted of both *175 charges, but stated that the facts of that case took on greater significance in light of defendant's 1986 conviction and might tend to establish a pattern of sexually oriented behavior.
The trial court found by clear and convincing evidence that defendant is a sexual predator. In making its determination, the court reviewed, among other things, a February 1984 parole violation report that contained a summary of investigative reports regarding the 1983 rape and kidnapping charges for which defendant was acquitted. The summary indicated that defendant had been found standing over a partially clad woman who alleged that defendant followed her from an after-hours bar and raped her. The summary also indicated that defendant admitted that he and the woman had been drinking at the after-hours bar, but claimed that their sexual encounter was voluntary.
The trial court noted the similarities between the 1983 and 1986 incidents, particularly the fact that defendant managed to get women in an isolated location after they left after-hours bars in order to carry out his sexual designs. Although the crimes were not identical, they were similar enough for the court to find them "tremendously persuasive" in demonstrating a pattern of sexually oriented behavior.
Besides its reliance on the similarities between the 1983 and 1986 incidents in demonstrating a pattern of sexually oriented behavior, the trial court specifically referred to six of the ten factors listed in R.C.
Defendant contends that the trial court's reliance upon the facts underlying the 1988 rape and kidnapping indictment was inappropriate because defendant was acquitted of those charges.
Assuming, without deciding, that the trial court's reliance upon the facts underlying defendant's 1983 acquittal for rape and kidnapping was improper, we find any such reliance to be harmless, given that the record contains competent, credible evidence to support the trial court's reliance on six other factors listed in R.C.
Based upon a thorough review of the record and consideration of all factors, including, but not limited to, the factors listed in R.C.
Having overruled defendant's assignments of error, this court hereby affirms the judgment of the Franklin County Court of Common Pleas.
Judgment affirmed.
DESHLER, P.J., concurs.
TYACK, J., dissents.
Dissenting Opinion
Mr. Maye, through a unique set of events, was never convicted of a sexually oriented offense. A jury verdict of "guilty" does not constitute a conviction, especially where a state statute compels that an individual can only be convicted of one of two allied offenses of similar import. See R.C.
"Where the same conduct by defendant can be construed to constitute two or more allied offenses of similar import, the indictment or information may contain counts for all such offenses, but the defendant may be convicted of only one."
When the jury returned a verdict of guilty as to the both abduction and kidnapping, an election was made and Maye was convicted only of abduction. He cannot now nor any time in the future be convicted of any other offense. Abduction is not a sexually oriented offense.
Under the circumstances, we cannot do what the statute forbids, namely make Maye be convicted of kidnapping. The majority opinion goes to great lengths to do just that. I disagree with its reasoning and hence with its result. I, therefore, dissent. *177