2004 Ohio 4909 | Ohio Ct. App. | 2004
Lead Opinion
{¶ 3} The victim did not immediately report the rape to the police because she was initially embarrassed. Appellant called her the day after the incident and said "I want more * * * of your juices flowing." On the next day he called her again and asked why she was not in class for the midterm examination. The victim continued to skip class and asked university officials to transfer her to another class. She told them initially that appellant exposed himself to her, but later told them that he had raped her.
{¶ 4} Appellant was subsequently arrested. During the investigation of the crime, appellant asked Vicki Challenger, one of his other students, to write a letter on his behalf. In her letter, Challenger described what happened on July 22, the day of the midterm examination. She wrote that the victim did not attend class on that day. Challenger also wrote that she left the classroom with appellant after the exam and that they talked briefly about her plans to go to a local coffee shop with another student. According to Challenger, appellant headed to his car after their conversation. Though Challenger's letter correctly indicated that the midterm examination and the other events described in the letter took place on July 22, appellant later changed the date to July 20.
{¶ 5} Before appellant's trial, the trial court granted a motion in limine filed by appellant to prevent the state from introducing evidence from eight other women at Tri-C who claimed to have been sexually harassed by appellant. After a jury trial, appellant was convicted of rape and tampering with evidence and was sentenced to seven to twenty-five years for the rape, followed by two concurrent one-year sentences for tampering with evidence. State v. Sevayega, Cuyahoga App. No. 65942, 1994-Ohio-4209.
{¶ 6} Appellant filed an appeal with this court and his appeal was denied on all assignments of error. In November 1997, appellant filed a pro se petition for postconviction relief. The trial court subsequently denied the petition. Appellant was released from prison in April 2003. In May 2003, after his release, he filed a second petition for postconviction relief.
{¶ 7} Pursuant to a recommendation from the Ohio Department of Rehabilitation and Correction that appellant be classified as a sexual predator, the trial court held a sexual offender classification hearing in July 2003. The trial court denied appellant's motion to postpone the hearing pending resolution of his second petition for postconviction relief.
{¶ 8} At the sexual offender classification hearing, the state of Ohio presented the testimony of five women who testified that appellant had sexually harassed them while he was a professor at Tri-C. The testimony of the women had been excluded from trial as more prejudicial to appellant than probative. In addition to the testimony from the women, Detective Mark Hastings and licensed clinical counselor Martha Beltz also testified at the hearing. Appellant was found to be a sexual predator at the above hearing and is now appealing that finding to this court.
{¶ 10} We find appellant's first argument to be without merit. First, there is nothing within the statutory scheme of R.C. 2950 which requires such action. R.C.
{¶ 11} In addition, appellant offers no evidence to demonstrate how he was prejudiced by the trial court's failure to stay the hearing until the court had ruled on his petition. Our review of the record indicates that he was not prejudiced in any way by the order in which the hearings were held. At the conclusion of the sexual offender classification hearing, the trial judge stated, in reference to appellant's petition for postconviction relief:
"I will set it for a hearing, and should in fact it come outthat you end up getting a new trial, to add more confusion toeverything here, if that's the case, this court is going to bevoided."
{¶ 12} Thus, it is apparent that the trial judge recognized that his decision regarding appellant's sexual predator status could change, depending upon his ruling on the petition for postconviction relief.
{¶ 13} Appellant's first assignment of error is therefore overruled.
{¶ 14} Appellant's second assignment of error states the following: "The evidence was insufficient, as a matter of law, to prove by clear and convincing evidence that appellant is likely to engage in the future in one or more sexually oriented offenses."
{¶ 15} R.C.
"(3) In making a determination under divisions (B)(1) and (4)of this section as to whether an offender or delinquent child isa sexual predator, the judge shall consider all relevant factors,including, but not limited to, all of the following: (a) The offender's or delinquent child's age; (b) The offender's or delinquent child's prior criminal ordelinquency record regarding all offenses, including, but notlimited to, all sexual offenses; (c) The age of the victim of the sexually oriented offense forwhich sentence is to be imposed or the order of disposition is tobe made; (d) Whether the sexually oriented offense for which sentenceis to be imposed or the order of disposition is to be madeinvolved multiple victims; (e) Whether the offender or delinquent child used drugs oralcohol to impair the victim of the sexually oriented offense orto prevent the victim from resisting; (f) If the offender or delinquent child previously has beenconvicted of or pleaded guilty to, or been adjudicated adelinquent child for committing an act that if committed by anadult would be, a criminal offense, whether the offender ordelinquent child completed any sentence or dispositional orderimposed for the prior offense or act and, if the prior offense oract was a sex offense or a sexually oriented offense, whether theoffender or delinquent child participated in available programsfor sexual offenders; (g) Any mental illness or mental disability of the offender ordelinquent child; (h) The nature of the offender's or delinquent child's sexualconduct, sexual contact, or interaction in a sexual context withthe victim of the sexually oriented offense and whether thesexual conduct, sexual contact, or interaction in a sexualcontext was part of a demonstrated pattern of abuse; (i) Whether the offender or delinquent child, during thecommission of the sexually oriented offense for which sentence isto be imposed or the order of disposition is to be made,displayed cruelty or made one or more threats of cruelty;
(j) Any additional behavioral characteristics that contributeto the offender's or delinquent child's conduct."1
{¶ 16} Despite this seemingly exhaustive list, the statute does not require that the trial court list or satisfy each of these factors in order to make a sexual predator determination. It simply requires that the trial court consider all factors which are relevant to its determination. State v. Cook (1998),
{¶ 17} We find that the evidence presented in the record demonstrates
{¶ 18} that the sexual predator classification was proper. The testimony
{¶ 19} of Detective Mark Hastings is a typical example of the evidence given to support the trial court's sexual predator classification. Detective Hastings testified that he was struck by the similarities between what happened to the victim compared to what happened to other women who testified that the defendant acted inappropriately with them. In addition, we find the words of the trial court judge to be worth mentioning. The trial court's comments were enlightening and significant. The lower court judge stated that:
" * * * the record doesn't really depict the demeanor ofthese people on the witness stand. They couldn't look at you,and you didn't want to look at them either. While that doesn'tmake someone guilty, they were terrified of you, terrified ofyou. If you are going to put this web out again, you are goingto get caught in it, at least we are going to know where you arebecause I am going to determine that you are a sexual predator,and I would like your address sir."
{¶ 20} (Emphasis added.)
{¶ 21} In either a criminal or a civil case, the weight to be given the evidence and the credibility of the witnesses are primarily for the trier of the facts. State v. DeHass (1967),
{¶ 22} We find the evidence presented is more than sufficient to establish by clear and convincing evidence that appellant is likely to engage in the future in one or more sexually oriented offenses.
{¶ 23} Appellant's second assignment of error is overruled and the trial court's decision is hereby affirmed.
It is ordered that appellee recover of appellant its 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 Cuyahoga County Court of Common Pleas 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.
Gallagher, J., Concurs in Judgment only with separateConcurring Opinion; McMonagle, P.J., Concurs with Assignment ofError One and Dissents regarding Assignment of Error Two withSeparate Concurring and Dissenting Opinion.
Concurrence Opinion
{¶ 24} I respectfully concur with the analysis and judgment of the opinion authored by Judge Calabrese affirming the decision of the trial court to classify Sevayega as a sexual predator. I write separately to address concerns about the application of R.C.
{¶ 25} A sexual predator is defined by R.C.
{¶ 26} Under the statute that applies to Sevayega, to classify an offender as a sexual predator a trial court must determine, by clear and convincing evidence, that the offender has been convicted of or pleaded guilty to committing a sexually oriented offense and is likely to engage in the future in one or more sexually oriented offenses. R.C.
{¶ 27} In making a determination under the statute, the trial court must consider all relevant factors, including, but not limited to, the following: (a) the offender's age; (b) the offender's prior criminal record; (c) the age of the victim of the sexually oriented offense; (d) whether the sexually oriented offense involved multiple victims; (e) whether the offender used drugs or alcohol to impair the victim or prevent the victim from resisting; (f) if the offender previously had 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 sex offenders; (g) any mental illness or mental disability of the offender; (h) the nature of the offender's sexual conduct, contact, or interaction in a sexual context with the victim and whether the conduct was part of a demonstrated pattern of abuse; (i) whether the offender, during the commission of the offense, displayed cruelty or threatened cruelty; and (j) any additional behavioral characteristics that contribute to the offender's conduct. R.C.
{¶ 28} In the instant case, as Judge McMonagle points out, much of the purported evidence was never actually admitted into the record. Although I agree with Judge McMonagle's thoughtful analysis on that issue, I believe the testimony evidenced in the record by the five victims sexually harassed by Sevayega is compelling. Although it is significant that the events outlined in this testimony are more than ten years old and Sevayega is now aged 66, prior conduct is a clear indicator of future behavior. The behavior described in the testimony, in my view, goes beyond sexual harassment. This conduct, outlined by multiple victims, shows a serial pattern of inappropriate behavior towards women warranting a sexual predator classification. This testimony establishes by clear and convincing evidence that Sevayega is likely to reoffend.
{¶ 29} There are inherent problems with the application of the sexual predator statute that are evident in this case. First, the entire analysis is clouded by conducting a House Bill 180 hearing, years after the initial conviction.1 In addition, the best evidence of whether a person is likely to reoffend, or even the clinical analysis of the risk to reoffend, is often based on behavioral characteristics exhibited years earlier. Further, current behaviors offered as evidence, both against and in favor of the designation, must be measured in light of the fact that they are displayed in a controlled prison setting, away from the realities of everyday life.
{¶ 30} The record reflects that the trial court referenced R.C.
{¶ 31} Although Judge McMonagle is correct that the Supreme Court of Ohio in Eppinger, supra, clearly stated "* * * a psychologist, psychiatrist or other expert in the field of predicting future behavior may be the best tool available to the court to assist it in making these determinations," these reports, in their present form, are rarely definitive. The psychiatric evaluation offered here categorized Sevayega as having a low risk to reoffend. The analysis indicates Sevayega as having a 6 percent risk to reoffend within five years, a 7 percent risk to reoffend within ten years, and a 7 percent risk to reoffend within fifteen years. Surprisingly, this evaluation places Sevayega at a higher risk to reoffend at the age of 81, twenty-five years after the original offense, than today. Often the evaluations in these cases are in conflict. Such divergent evaluations by purported experts do little to increase confidence in the current psychiatric evaluation process involving alleged predators.2
{¶ 32} By not mandating narrow, clearly defined factors for sexual predator classifications, inconsistencies and inequities in classification occur between similarly situated sexual offenders. By mandating a clear legal standard for classification, the factual inconsistencies between judgments would diminish. The questionable "a la carte" method of selection between purported factors does little to effectively label those at high risk to reoffend or offer valid protection to the public. Nevertheless, because the evidence in the record details a serial pattern of prior misconduct, which is arguably the best predictor of future conduct, I would affirm the decision of the trial court.
Dissenting Opinion
{¶ 33} Although I concur with the majority's disposition of Sevayega's first assignment of error, I respectfully dissent from its conclusion that the evidence adduced at the sexual offender classification hearing was sufficient to prove by clear and convincing evidence that Sevayega is likely to engage in another sexually oriented offense in the future.
{¶ 34} The majority relies upon the testimony of five women who testified at the hearing that Sevayega made inappropriate sexual comments to them or tried to inappropriately touch them while he was a professor at Tri-C in finding the evidence sufficient to indicate that Sevayega is likely to reoffend in the future. The majority totally ignores the fact, however, that each woman's testimony concerned events that occurred nearly twelve years prior to the hearing. Moreover, although the allegations of all of these women had been investigated prior to Sevayega's rape trial, none of the complaints resulted in additional charges against him. Thus, Sevayega's behavior toward these woman, although objectionable, was not criminal.
{¶ 35} In his defense, Sevayega presented a psychiatric report from the Court Psychiatric Clinic at the hearing. This report, dated April 24, 2003 and authored by Michael Caso, chief social worker at the clinic, indicated that Sevayega had been interviewed by Caso for approximately two hours over a two-day period. Caso's report stated that in evaluating Sevayega, he also reviewed the House Bill 180 packet sent by the Belmont Correctional Institution to the court, which included "Belmont Correctional Institution Summary Report, Offense Record, Sex Offender Education Programming Completion Certificate, Inmate Evaluation Reports, Victim Awareness Completion Report, Positive Solutions/Cognitive Thinking Program Completion Certificate, Learning to Live Without Violence Completion Certificate, Cage the Rage Completion Certificate, Perfect Attendance at Church Certificate, ODRC Memo, Presentence Investigation Report prepared by JoAnna Hairston of the Cuyahoga County Court of Common Pleas Probation Department on 7/22/93, ODRC Education Verification Form, Cleveland Public Schools-Secondary Permanent Record Form."1
{¶ 36} Caso also gave Sevayega the Static-99 test, an actuarial instrument designed to estimate the probability of sexual recidivism among adult males convicted of at least one sexual offense. Caso reported that Sevayega received a Static-99 score of 1, which placed him in the low risk category for reoffending. Caso's report further indicated that Sevayega's score equated to an actuarially-determined recidivism rate of 6% within five years, 7% within ten years and 7% within 15 years.
{¶ 37} Significantly, Caso's report found that Sevayega did not present with eight factors significantly correlated with sexual recidivism: 1) never married — he had been married and resided with a significant other for at least two years; 2) deviant sexual preference — there was no documentation that he has a deviant sexual preference; 3) prior sexual offense — this was Sevayega's first offense; 4) failure to complete treatment — Sevayega completed treatment for sexual offenders; 5) antisocial personality disorder — Sevayega does not have a history or traits characteristic of this disorder; 6) any prior criminal offenses — this was Sevayega's first criminal offense; 7) age — offenders who are younger than 25 present a higher risk to sexually reoffend; Sevayega was age 66; 8) male child victim — the victim of the offense was female. Caso reported that the only risk factor associated with recidivism that applied to Sevayega was the fact that the victim was not related to him.
{¶ 38} At the hearing, the trial court excluded the testimony of the State's expert regarding Sevayega's likelihood to reoffend because she had artificially inflated her credentials on her curriculum vitae. Moreover, although the trial judge stated that he had reviewed "a great deal of testimony in the underlying case," none of the transcript from the trial is part of the record. Likewise, as noted earlier, none of the documents contained in the House Bill 180 packet are contained in the record. Thus, the record consists only of State's Exhibit 1, which is a witness affidavit authored by one of the women who testified at the hearing; Defendant's Exhibit A, which is the Court Psychiatric Clinic Report finding Sevayega not likely to sexually reoffend; and the transcript of the hearing. A determination that an individual is a sexual predator is based upon a prediction of future sexual misconduct. In State v.Eppinger (2001),
{¶ 39} The trial court, however, without any explanation, totally ignored the report. Although a trial court is not obligated to concur with the findings of the Court Psychiatric Clinic, in this case, the court should have given deference to the report since the only evidence presented by the State was historical data regarding offensive, although not criminal, acts that occurred twelve years prior to the hearing. Although I do not condone Sevayega's behavior toward the women who testified, their testimony merely reported Sevayega's past behavior; it did not predict his current likelihood of reoffending in the future. The only evidence presented at the hearing regarding Sevayega's likelihood of reoffending was the psychiatric report from the court clinic, which put his risk of reoffending at low.
{¶ 40} In State v. Abelt (2001),
{¶ 41} Likewise, it is not an appropriate application of R.C.
{¶ 42} On the totality of this record, I would hold that the State failed to demonstrate by clear and convincing evidence that Sevayega is likely to reoffend in the future. Accordingly, I respectfully dissent from the majority's resolution of assignment of error two.
