Opinion
Case No. 97CA20
April 2, 1999
Hon. W. Scott Gwin, P.J., Hon. Sheila G. Farmer, J., Hon. Julie A. Edwards, J., JUDGES.
CHARACTER OF PROCEEDING:
Appeal from the Court of Common Pleas, Case Nos. 84CR59 and 85CR16.
JUDGMENT:
Affirmed.
APPEARANCES:
For Plaintiff-Appellee
Jetta Mencer.
For Defendant-Appellant
Norman S. Davitt.
On August 21, 1984, the Coshocton County Grand Jury indicted appellant, John Pahoundis, on one count of attempted aggravated murder in violation of R.C. 2903.01, one count of aggravated robbery in violation of R.C. 2911.01 (A)(2) and one count of grand theft in violation of R.C. 2913.02(A)(1) (Case No. 84CR59). Said charges arose from an incident on August 10 or 11, 1984, wherein appellant had offered one Teresa Stone, an adult, a ride and then attacked her after she refused to have sex with him.
On March 5, 1985, appellant pled guilty to one count of abduction [R.C. 2905.02(A)] on a bill of information (Case No. 85CR16) and the amended charge of felonious assault [R.C. 2903.11 (A)(1)] (Case No. 84CR59). By judgment entry filed June 7, 1985, the trial court sentenced appellant to an aggregate indeterminate term of five to fifteen years in prison.
On August 11, 1997, a hearing was held to determine appellant's status pursuant to the Sex Offender Registration Act, R.C. Chapter 2950. By judgment entry filed August 22, 1997, the trial court classified appellant as a "sexual predator."
Appellant filed an appeal and this matter is now before this court for consideration. Assignments of error are as follows:
I
THE COURT'S DECISION VIOLATES THE OHIO AND FEDERAL CONSTITUTIONS BY LABELING THE DEFENDANT AS A SEXUAL PREDATOR AND SUBJECTING HIM TO THE REQUIREMENTS OF O.R.C. 2950.
II
O.R.C. 2950.09(C) IS VOID FOR VAGUENESS.
III
THE DECISION OF THE TRIAL COURT IS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.
I, II
This court has previously reviewed these arguments in State v. Royce Albaugh (February 1, 1999), Stark App. Nos. 1997CA00167 and 1997CA00222, unreported, State v. Earl Bair (February 1, 1999), Stark App. No. 1997CA00232, unreported, and State v. Frederick A. McIntyre (February 1, 1999), Stark App. No. 1997CA00366, unreported. We hereby adopt and incorporate the corresponding assignments of error from these opinions herein.
Assignments of Error I and II are denied.
III
Appellant argues the trial court's classification was against the manifest weight of the evidence. We disagree.
In State v. Cook (1998), 83 Ohio St.3d 404, the Supreme Court of Ohio determined R.C. Chapter 2950 is remedial in nature and not punitive. As such, we will review this assignment of error under the standard of review contained in C.E. Morris Co. v. Foley Construction (1978), 54 Ohio St.2d 279. We find this to be the applicable standard as the Cook court addressed a similar challenge under a manifest weight standard of review. See, Cook at 426.
R.C. 2950.01(E) defines a "sexual predator" 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." R.C. 2950.09(B)(2) sets forth the relevant factors a trial court is to consider in making its determination:
(2) In making a determination under divisions (B)(1) and (3) of this section as to whether an offender is a sexual predator, the judge shall consider all relevant factors, including, but not limited to, all of the following:
(a) The offender's age;
(b) The offender's prior criminal record regarding all offenses, including, but not limited to, all sexual offense;
(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.
At the hearing, the trial court had before it "the contents of Case File Number 85-CR-16 and Case File Number 84-CR-59, together with a pre-sentence investigation report that relates to both of those cases, and the attachments thereto which appear to consist of a series of color photographs." T. at 4. The trial court noted appellant had driven the victim to a remote area and became "physically violent with her when she refused to have, quote, have sex with him, unquote." T. at 6-7. Appellant partially unclothed the victim and hit and kicked her in the face and chest. T. at 7. During the assault, appellant nearly severed the victim's left ear from her head. Id. The trial court found the victim was "the victim of a sexually oriented offense, an offense committed by an offender with a substantial prior criminal record and an offense which was accompanied by a particular display of cruelty resulting in serious and disfiguring injuries to the victim." T. at 9. Based upon these factors in light of R.C. 2950.09(B)(2), the trial court concluded appellant should be classified a "sexual predator" as defined in R.C. 2950.01(E).
Based upon our review of the record, we find the trial court's conclusion is supported by clear and convincing evidence and is not against the manifest weight of the evidence.
Assignment of Error III is denied.
The judgment of the Court of Common Pleas of Coshocton County, Ohio is hereby affirmed.
By Farmer, J., Gwin, P.J. and Edwards, J. concur.
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For the reasons stated in the Memorandum-Opinion on file, the judgment of the Court of Common Pleas of Coshocton County, Ohio is affirmed.
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