State v. VanekState v. Vanek
{¶ 1} Defendant-appellant, Charles Vanek (“Vanek”), appeals his classification as a sexual predator. Finding no merit to the appeal, we affirm the trial court’s classification.
{¶ 2} In 2006, Vanek was charged with six counts of pandering sexually oriented matter involving a minor and one count of possessing criminal tools. The State alleged that Vanek downloaded images оf young children engaged in sexual acts. Vanek pled guilty to two counts of pandering sexually oriented matter involving a minor, one of which was a second degree felony and the other, a fourth degreе felony.
{¶ 3} The trial court held a sexual classification hearing and determined that Vanek should be classified as a sexual predator. The trial court also sentenced him to three years of cоmmunity control sanctions.
{¶ 4} Vanek appeals his classification as a sexual predator, arguing in his sole assignment of error that the trial court’s decision was against the manifest weight of the evidencе.
{¶ 5} The trial court must hold a hearing to determine whether an offender who is convicted of or pleads guilty to a sexually oriented offense should be classified as a sexual predator.
{¶ 6} A sexual predator is defined as “a person who 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.”
{¶ 8} In reviewing a sexual predator classification, this court’s role is to determine whether the weight of the evidence supports the trial court‘s decision. “[A] trial court‘s determination in a sex-offender-classification hearing must be viewed under the civil manifest-weight-of-the-evidence standard and may not be disturbed when the judge‘s findings are supported by some competent, credible evidence.” Wilson at syllabus. A reviewing court must presume that the findings of the trial court are correct. Id. at ¶24. Thus, under the standard enunciated in Wilson, we must affirm the trial court‘s determination if it is supported by some competent, credible evidence.” See Id. at ¶41.
{¶ 9} In the instant case, Vanek argues that his classification wаs against the manifest weight of the evidence, and he cites the following factors in support of his argument: he was fifty-one years old at the time of the hearing; he had no prior
{¶ 10} The trial court in the instant case found the following evidence relevant: (1) that although Vanek was currently engaged in sex-offender treatment, he was in treatment because “he enjoys those images”; (2) Vanek admitted that he would have continued his criminal behavior if he had not been caught; (3) Vanek’s version of the offenses was “less than an admission” and hе related different versions to his counselor and the court psychologist; (4) his frequent use of drugs and alcohol; (5) his use of alcohol while committing the offenses; (6) and the court’s inability to prevent Vanek’s access to computers. Based on these factors, the court found that Vanek is likely to engage “in this kind of conduct in the future.” The court concluded that “all the indicators in these reports as well as the conduct causes this court to find that there is clear and convincing evidence that [Vanek] would participate in this conduct in the future.” The court marked as evidence the presentence report, the psychiatric clinic’s report, and the Static-99 and RRASOR reports that were administered by Vanek’s counselor at Advanced Psychotherapy Services.
{¶ 12} Although Vanek’s statistical risk of reoffending appears low, we note that “the utility of the Static-99 evaluation as a diagnostic tool for individual risk assessment is open to question.” State v. Ellison, Cuyahoga App. No. 78256, 2002-Ohio-4024. The evaluation merely performs an actuarial assessment of an offender‘s chances of reoffending. See State v. Colpetzer, Cuyahoga App. No. 79983, 2002-Ohio-967. “While actuarial risk assessments are said tо outperform clinical risk assessments, actuarial assessments do not, and cannot, purport to make a prediction of a particular offender‘s future conduct.” Ellison, supra. We also note that, althоugh Vanek’s counselor used the Static-99 test, the court psychiatric clinic did not administer that test, noting that the test is not meant to be used unless a person is charged with or convicted of having sexual contаct. We also note that the ABEL assessment test performed by the court psychiatric clinic indicated that Vanek had no sexual interest in children. That same report, however, also stated that a risk factor for sexual offense recidivism was the fact that the computer images Vanek
{¶ 13} In addition, it bears mentioning that although Vanek’s counsel stated during the hearing that there was “no identifiable victim” in this case, the children depicted in the pornographic images found on Vanek’s computer are actual victims of Vanek’s crimes. See State v. Stancombe, Lake App. Nos. 2006-L-021 and 2006-L-045, 2006-Ohio-5181, citing United States v. Norris (C.A.5, 1998), 159 F.3d 926, 929-930 (noting that (1) “the simple fact that the images have been disseminated perpetuates the abuse initiated by the producer of the materials,” (2) “the mere existence of child pornography represents an invasion of the privacy of the сhild depicted,” and (3) “the consumer of child pornography instigates the original production of child pornography by providing an economic motive for creating and distributing the materials“); State v. Tish, Cuyahoga App. No. 88247, 2007-Ohio-1836 (finding that each child pictured is a victim).
{¶ 14} Additionally, even though the report by Vanek’s counselor found him to be a low risk for reoffending, it is important to consider as the trial court did, the differing version of events Vanek provided his counselor and the rendition he gave the court psychiatric clinic. In other words, the fact that Vanek downplayed his actions to his counselor could have affected his counselor’s findings.
{¶ 16} Accordingly, the sole assignment of error is overruled.
Judgment affirmed.
It is ordered that appellee recover of appellant costs herein taxed.
The Court finds there were reasonable grounds for this appeal.
It is ordered that a speсial 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
COLLEEN CONWAY COONEY, JUDGE
JAMES J. SWEENEY, P.J., and MARY EILEEN KILBANE, J., CONCUR