STATE OF OHIO, PLAINTIFF-APPELLEE vs. CARL A. NELSON, DEFENDANT-APPELLANT
No. 101228
Court of Appeals of Ohio, EIGHTH APPELLATE DISTRICT, COUNTY OF CUYAHOGA
November 26, 2014
2014-Ohio-5285
Celebrezze, P.J., S. Gallagher, J., and Kilbane, J.
Civil Appeal from the Cuyahoga County Court of Common Pleas, Case No. CR-86-212590-B; JUDGMENT: AFFIRMED
Ruth R. Fischbein-Cohen
3552 Severn Road
Suite 613
Cleveland, Ohio 44118
ATTORNEYS FOR APPELLEE
Timothy J. McGinty
Cuyahoga County Prosecutor
BY: Brett Hammond
Assistant Prosecuting Attorney
The Justice Center
1200 Ontario Street
Cleveland, Ohio 44113
{¶1} Appellant, Carl A. Nelson, appeals his classification as a sexual predator imposed on him in 2014 as a result of the state‘s motion for a sexual classification hearing under Megan‘s Law, referred to as an “H.B. 180 classification” hearing by the trial court. Appellant argues the trial court erred in classifying him as a sexual predator (the most severe classification) rather than a sexually oriented offender (the least severe category). After a thorough review of the record and law, we affirm appellant‘s classification.
I. Factual and Procedural History
{¶2} In 1987, appellant was convicted, following a jury trial, of the kidnapping and rape of a 14-year-old girl, for which he received five 15-to-25-year prison sentences, ordered to be served consecutively.1 The facts surrounding these convictions have previously been recounted in appellant‘s direct appeal, State v. Nelson, 8th Dist. Cuyahoga No. 54791, 1989 Ohio App. LEXIS 908 (Mar. 16, 1989). Appellant also has prior convictions for rape and kidnapping from a 1978 case that resulted from guilty pleas. In that case, the victim was 13 years old. He received two concurrent four-to-25-year-prison sentences as a result of that case.
{¶3} On February 20, 2014, the state filed a motion asking the trial court to hold a sexual classification hearing.2 An evaluation was conducted by the court psychiatric clinic, and a classification report was generated. The report included results obtained from other reports generated in appellant‘s cases, including an outdated “Static-99” score placing him in the
{¶4} On March 18, 2014, the trial court held a classification hearing. It heard arguments from the state and appellant. The court then classified appellant as a sexual predator under Megan‘s Law, finding:
The House Bill 180 evaluation3 does raise some interesting red flags in addition to going over possible reoffending. It discusses his diagnosis as an antisocial personality disorder.
This is of grave concern to the court. It states that he has failed to conform to social norms with respect to lawful behaviors as demonstrated by arrests. He was deceitful after he left the area after he found out about charges. He worked under an alias. Disregarded the safety of others by engaging in aggressive sexual behavior as well as having juvenile issues.
The court does believe that the state has met its burden by clear and convincing evidence that the defendant should be classified as a sexual predator. There were two victims in the case, in unrelated cases. Both were fourteen. Use of force and threat of force in particular in the second case. Stuffing a rag in her mouth, tying her legs to the bedpost. There was an accomplice. There was a kidnapping. Further harm was threatened to the victim if she was — if she took it upon herself to report.
* * *
And I have before me someone who self-reported that he didn‘t have an attraction to children, yet I have two separate cases within a relatively short period of time involving fourteen-year-old girls.
{¶5} Appellant filed the instant appeal assigning one error for review:
The trial court committed reversible error when it labeled the defendant-appellant a sexual predator.
II. Law and Analysis
{¶6} Prior to Ohio‘s enactment of its version of the Adam Walsh Act (“AWA“),
{¶7} Pursuant to former
“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.‘”
{¶8} This court reviews these determinations under a civil manifest-weight-of-the-evidence standard. State v. Bidinost, 8th Dist. Cuyahoga No. 100466, 2014-Ohio-3136. This is because a sex offender classification under Megan‘s Law is considered civil in nature. State v. Wilson, 113 Ohio St.3d 382, 2007-Ohio-2202, 865 N.E.2d 1264, syllabus. The civil manifest weight of the evidence standard “affords the lower court more deference than the criminal standard.” Id. at ¶ 26. “Thus, a judgment supported by ‘some competent, credible evidence going to all the essential elements of the case’ must be affirmed.” Id., citing C.E. Morris Co. v. Foley Constr. Co., 54 Ohio St.2d 279, 376 N.E.2d 578 (1978).
{¶9} Certain factors are set forth in the statute that the trial court should consider when classifying an individual. These factors include the age of the offender and criminal record; the victim‘s age; whether the offense involved multiple victims; whether the offender used drugs or alcohol to impair the victim; if the offender has previously been convicted of any criminal offense; whether the offender participated in any available program for sex offenders; whether the offender demonstrated a pattern of abuse or displayed cruelty toward the victim; any mental illness or disability of the offender; and any other behavioral characteristics that contribute to the sex offender‘s conduct. Former
{¶10} While these factors should be considered, a “trial court is not required to individually assess each of these statutory factors on the record nor is it required to find a specific number of these factors before it can adjudicate an offender a sexual predator so long as its determination is grounded upon clear and convincing evidence.” State v. Caraballo, 8th Dist. Cuyahoga No. 89757, 2008-Ohio-2046, ¶ 8, citing State v. Ferguson, 8th Dist. Cuyahoga No. 88450, 2007-Ohio-2777.
{¶12} Appellant points to an addendum, dated November 22, 2010, to an earlier clinical risk assessment generated by a parole authority request.5 The addendum indicates that appellant‘s “risk score, as reported by the Parole Board is 4.”6 The addendum goes on to document the factors that are favorable to appellant, while only indirectly referring to the prior negative factors found in the prior report. Appellant‘s risk assessment in this addendum was factored into the court psychiatric clinic evaluation prepared for the classification hearing, which found that appellant had a moderate to high risk of recidivism.
{¶14} Appellant‘s attempts to better himself while in prison were not ignored by the court. These laudable actions, however, do not overcome the factors that weigh against a less severe classification.
III. Conclusion
{¶15} The trial court‘s decision was not against the manifest weight of the evidence. Appellant‘s classification as a sexual predator is supported by his prior criminal history and the psychological evaluation. Appellant‘s repeated history of violence and sexual assault against young women demands the most significant reporting requirements, should appellant ever leave prison.
{¶16} Judgment affirmed.
It is ordered that appellee recover from appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the common pleas court to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure.
FRANK D. CELEBREZZE, JR., PRESIDING JUDGE
SEAN C. GALLAGHER, J., and
MARY EILEEN KILBANE, J., CONCUR