2006 Ohio 1220 | Ohio Ct. App. | 2006
{¶ 2} We deem the state's February 17, 2006, motion for a stay of our first decision in this case, State v. Mozena, 1st Dist. No. C-050208,
{¶ 3} Mozena entered a no-contest plea to two counts of gross sexual imposition, in violation of R.C.
{¶ 4} In his first assignment of error, Mozena argues that because he had not previously served a prison term, R.C.
{¶ 5} In State v. Foster at ¶ 53, the Ohio Supreme Court agreed that "[c]ertain aspects of Ohio's felony sentencing plan are unconstitutional when measured against the Sixth Amendment principles established in Blakely." The supreme court also found R.C.
{¶ 6} But the sentence was based on unconstitutional statutes, under the mandate of State v. Foster, we have no recourse but to sustain the first assignment of error, vacate the sentence, and remand the case for resentencing. See id. at ¶ 103 and 104.
{¶ 7} In his second assignment of error, Mozena argues that the trial court erred in classifying him as a sexual predator based on its finding that he is a pedophile. Mozena contends that the trial court erroneously interpreted the findings of the clinical psychologists when it concluded that "[t]he clinical findings show by clear and convincing evidence that the defendant, if one had to place a medical term, that is, that he is a sexual pedophile. * * * [T]he reports of Dr. Bassman and Dr. Baker do suggest that the defendant does have an illness, a sickness, a disease, being pedophilia. It is more likely than not based on those clinical analyses that, at least from the Court, that he will more likely than not repeat this activity."
{¶ 8} Mozena is correct. Dr. Bassman's report actually states, "The possibility of pedophilia should be explored within the context of psychotherapy." The trial court was not capable of reaching a medical conclusion that Mozena is a pedophile absent evidence from the clinic reports or other medical diagnosis based upon the opinion of an expert. See State v. Griswold (Mar. 20, 1987), 6th Dist. No. L-85-333 (permitting the use of "pedophile" as a descriptive term but not as a medical diagnosis). Here, the record reflects only that psychological experts recommended further evaluation.
{¶ 9} But the trial court's erroneous finding that Mozena is a pedophile is not reversible error because the trial court appropriately assessed independently the actual evidence in light of each factor in R.C.
{¶ 10} In classifying Mozena a sexual predator, the trial court found (1) the two victims were eleven years old at the time of the crimes; (2) Mozena was fifty-nine years old; and (3) the offenses involved separate victims and were committed on separate dates. Under the additional behavior characteristics that contribute to an offender's conduct found in R.C.
{¶ 11} After reviewing the transcript of the classification hearing and the exhibits, we conclude that the trial court had more than ample evidence before it to produce a firm belief that Mozena was "likely to engage in one or more sexually oriented offenses sometime in the future." R.C.
{¶ 12} Therefore, the sentence of the trial court is vacated, and we remand the case for resentencing. The trial court's judgment classifying Mozena as a sexual predator is affirmed.
Judgment accordingly.
Gorman, P.J., Painter and Hendon, JJ.