JOURNAL ENTRY AND OPINION Defendant-appellant, Samuel Winchester, appeals the finding by the trial court, pursuant to R.C. 2950.09(C), that he is a sexual predator. He alleges two constitutional and one evidentiary error in support. Although appellant's constitutional challenges lack merit, we agree that the evidence adduced at the hearing does not support the finding and, accordingly, vacate the sexual predator determination.
A review of the record on appeal indicates that on May 21, 1986, appellant was found guilty after a jury trial of kidnapping, in violation of R.C. 2905.01; gross sexual imposition, in violation of R.C. 2907.05; and five counts of rape, in violation *Page 94 of R.C. 2907.02. Appellant was sentenced to five to twenty-five years of actual incarceration on the kidnapping and rape charges and a consecutive two-year term on the gross sexual imposition count, all counts to run consecutive to each other but subject to R.C. 2929.41. See State v. Winchester, Cuyahoga County Common Pleas Court Case No. CR 205557. This court sustained appellant's conviction in State v. Winchester (Aug. 27, 1987), Cuyahoga App. No. 52636, unreported.
On April 6, 2000, the trial court conducted a sexual predator determination hearing. In a journal entry filed on April 14, 2000, the trial court found appellant to be a sexual predator. This timely appeal followed.
Appellant's second and third assignments of error state:
II. OHIO'S SEXUAL PREDATOR STATUTE VIOLATES THE CONCEPTS OF SEPARATION OF POWERS BECAUSE IT FORCES A TRIAL COURT TO INVESTIGATE, PROSECUTE AND ADJUDICATE INDIVIDUALS AS SEXUAL PREDATORS.
III. THE ADJUDICATION PROVISIONS VIOLATE THE DUE PROCESS CLAUSES OF THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ARTICLE I OF THE OHIO CONSTITUTION, BECAUSE OHIO'S CLASSIFICATION SCHEME IS SYSTEMICALLY FLAWED.
In his second and third assignments of error, appellant raises constitutional challenges to R.C. Chapter 2950. This court has consistently rejected identical challenges to the constitutionality of R.C. Chapter 2950. See, e.g., State v. Wilson (Oct. 26, 2000), Cuyahoga App. No. 77530, unreported; State v. Gross (Aug. 17, 2000), Cuyahoga App. No. 76836, unreported; State v. Moore (Aug. 17, 2000), Cuyahoga App. No. 76830, unreported. Accordingly, appellant's second and third assignments of error are summarily overruled.
Appellant's first assignment of error states:
I. THE EVIDENCE IS 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 WHERE THE STATE PRESENTED ONLY FOURTEEN-YEAR-OLD HEARSAY EVIDENCE AND WHERE THE APPELLANT PRESENTED A TWO-WEEK-OLD EXPERT OPINION FINDING THAT HE DID NOT HAVE A PERSISTENT SEXUAL INTEREST THAT WAS PROBLEMATIC.
In his first assignment of error, appellant asserts that the evidence presented at his sexual predator determination hearing was insufficient to prove by clear and convincing evidence that he is a sexual predator.
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. Thus, at the sexual offender classification hearing, in order for the offender to be *Page 95 designated a sexual predator, the state must prove by clear and convincing evidence that the offender has been convicted of a sexually oriented offense and that the offender is likely to engage in the future in one or more sexually oriented offenses. State v. Eppinger(2001), 91 Ohio St. 3d 158, 163, citing R.C. 2950.01(E) and2950.09(B)(3). (Emphasis in original.)
The standard of clear and convincing evidence is the measure or degree of proof which is more than a mere preponderance of the evidence, but not to the extent of such certainty as is required beyond a reasonable doubt in criminal cases. State v. Schiebel (1990), 55 Ohio St. 3d 71, 74. Clear and convincing evidence is the measure or degree of proof which produces in the mind of the trier of facts a firm belief or conviction as to the facts sought to be established. Id. In reviewing a trial court's decision based upon clear and convincing evidence, an appellate court must examine the record to determine whether sufficient evidence exists to satisfy the requisite degree of proof. Id.
The first prong of R.C. 2950.01(E) was clearly satisfied in this case: appellant was found guilty of kidnapping,1 rape and gross sexual imposition. Appellant contends, however, that the evidence presented at the hearing was insufficient to establish by clear and convincing evidence that he is likely to engage in the future in one or more sexually oriented offenses.
In determining whether a sex offender is a sexual predator, a judge shall consider all relevant factors to determine whether the individual is likely to engage in future sex offenses. See R.C. 2950.09(B)(2). These factors include, but are not limited to, the offender's age and prior criminal record, the age of the victim, whether the sex offense involved multiple victims, whether the offender used drugs or alcohol to impair the victim of the sex offense, whether the offender completed a sentence for any conviction, whether the offender participated in any available program for sex offenders, whether the offender engaged in a pattern of abuse or displayed cruelty toward the victim, any mental disease or disability of the offender and any other behavioral characteristics that contribute to the sex offender's conduct. R.C. 2950.09(B)(2)(a) through (j).
At the sexual predator determination hearing, the state read into the record the victim's statement regarding appellant's offense, given to police shortly after the incident. The twenty-year-old victim stated that as she was walking down the street at approximately 2:30 a.m., a car driven by appellant and occupied by Robert Smith and a third man approached her and then stopped. The men offered the victim a ride, which she refused. One of the men got out of the car, *Page 96 however, and abducted her. She was thrown across the front bucket seats of the car, with her head in appellant's lap. Appellant slapped her and instructed her to perform oral sex on him, but she refused to do so.
The men then took the victim to Smith's third-story apartment, where she was forced to undress as the men watched. The men then forced the victim to engage in oral sex with appellant and Smith and anal intercourse with the third man. Appellant then pulled the third man away from the victim, informing him that it was his turn. The men then began arguing and Smith subsequently ordered appellant and the victim to get out of his apartment.
In the hallway of the apartment building, appellant told the victim that he was taking her to the corner of Prospect and East 40th Streets because she was going to make [him] some money. On the way out of the apartment building with the victim, however, appellant knocked on the door of a second-story apartment and then entered the apartment, telling the victim to stay in the hallway or he would kill her. The victim then ran out of the apartment and escaped to a restaurant across the street.
At the sexual predator determination hearing, the state also presented as a joint exhibit with appellant a copy of appellant's institutional record. The prosecutor noted that the record reflected that appellant had been disciplined several times in prison for disobedience of work orders, refusing to carry out a work order, being out of place and making threats. The state presented no other evidence at the sexual predator determination hearing.
We agree with appellant that the evidence presented by the state in this case was insufficient to support a determination that appellant is likely to engage in the future in one or more sexually oriented offenses. First, appellant's prison disciplinary record, unrelated to any sexual offense, is obviously not probative of the issue of whether appellant is likely to engage in the future in one or more sexually oriented offenses.
Moreover, few of the factors listed in R.C. 2950.09(B)(2) apply to the circumstances of appellant's offense: 1) there was no great disparity between the age of the victim and that of appellant, as both were in their twenties, R.C. 2950.09(a), (c); 2) the offense did not involve multiple victims, R.C. 2950.09(d); 3) appellant did not use drugs or alcohol to impair the victim or prevent her from resisting, R.C.2950.09(e); 4) appellant does not suffer from a mental disability or illness, R.C. 2950.09(f); 5) the offense was one isolated incident and not part of a demonstrated pattern of abuse, R.C. 2950.09(h); and 6) appellant had no prior criminal record nor any prior sexual offenses, R.C. 2950.09(b) and (f). *Page 97
Although there may be cases when the circumstances of the underlying offense tend to suggest that the offender is likely to commit such offenses in the future, State v. Ward (1999), 130 Ohio App. 3d 551, this is not one of those cases. The evidence presented by the state related solely to appellant's underlying conviction. This evidence, however, merely established that appellant committed a sexually oriented offense. It did not demonstrate by clear and convincing evidence that appellant is more likely than not predisposed to commit another sexually oriented offense. As this court has held repeatedly:
Simply committing a single sexually oriented offense is not proof, without further evidence or other compelling facts, that the offender is likely to engage in the future in one or more sexually oriented offenses. Had the legislature intended [that] result * * *, it would have done away with the hearing and weighing of evidence and simply classified any person committing a sexually oriented offense as a sexual predator. Id. (Emphasis added.)
See, also, State v. Hull (June 29, 2000), Cuyahoga App. No. 76460, unreported (Standing alone, defendant's rape conviction is insufficient to support his sexual predator determination.); State v. Gregory (Sept. 30, 1999), Cuyahoga App. No. 74859, unreported (The state failed to provide any evidence beyond the bare facts of defendant-appellant's conviction to satisfy the second prong of the determination regarding the likelihood of future offenses.); State v. Johnson (Sept. 30, 1999), Cuyahoga App. No. 74841, unreported (During the hearing, the court was merely presented with the prosecutor's recitation of the fact of appellant's underlying conviction and the bare allegation that appellant had a prior sex conviction.); State v. Wimberly (Aug. 12, 1999), Cuyahoga App. No. 74652, unreported (No witnesses were presented at the hearing and no further evidence was taken relative to whether Wimberly was a risk to be a repeat offender in the arena of improper sexual relations with others.); State v. Patterson (Feb. 11, 1999), Cuyahoga App. No. 72448, unreported ([T]he prosecution failed to present any evidence, beyond appellant's prior conviction, that appellant `is likely to engage in the future in one or more sexually oriented offenses.').
Although appellant's conduct was certainly reprehensible, R.C. Chapter 2950 is not meant to punish a defendant, but instead, `to protect the safety and general welfare of the people of this state.' Eppinger, supra at 165. Thus, instead of deciding whether the offender is particularly deserving of punishment, the issue presented to the court at a sexual offender classification hearing is whether the defendant is likely to commit future sexually oriented offenses. Id. at 166.
R.C. Chapter 2950 requires that the state present the trial court with evidence that the offender is likely to engage in the future in one or more sexually oriented *Page 98 offenses. See R.C. 2950.01(E). Because no such evidence was presented here, the state failed to prove that appellant would likely commit one or more sexual offenses in the future and therefore, the trial court erred in determining that appellant is a sexual predator.
We find the trial court's determination particularly troubling in light of the evidence presented by appellant at the hearing — evidence which, unlike that presented by the state, was clearly probative of the issue of whether appellant is likely to re-offend in the future. First, appellant introduced evidence contained in his institutional record that in 1995, he had successfully completed a twelve-week program regarding anger management and a twelve-week program for sex offenders.
More importantly, appellant presented the results of an Abel Assessment test for sexual interest. The Abel Assessment, which was conducted only two weeks prior to the sexual predator determination hearing, addressed two issues: whether appellant appeared to have a persistent sexual interest in sadistic behavior and whether he appeared to have any persistent sexual interests that might be problematic. The expert who administered the test to appellant analyzed appellant's scores on the three areas tested in the assessment. The expert stated:
Mr. Winchester's score on the Cognitive Distortion Scale indicates that he does not utilize potential justifications that are frequently used by individuals who are sexually involved with children.
Mr. Winchester appeared to be honest and presented with minimal defensiveness.
Mr. Winchester's score on the Social Desirability Scale indicated that he is unwilling to admit to being imperfect, to being sometimes angry or to lying about little things.
The expert concluded that:
In reference to the two main questions addressed by this assessment, Mr. Winchester 1) does not appear to have an interest in sadistic sexual behavior; and 2) does not appear to have any persistent sexual interests that might be problematic.
In summary, Mr. Winchester appears to be a heterosexual male; attracted to adult and adolescent females. He does not appear to have an interest in sadistic sexual behavior.
Therefore, it appears that his actions may have been motivated by other factors.
The trial court simply ignored the expert opinion regarding appellant's likelihood of re-offending, however, and concluded that appellant is out of touch with *Page 99 reality and, therefore, a sexual predator, because he was unwilling to admit to sometimes becoming angry or to lying about little things.
Once again, we remind the trial court that the state has the burden of proof in these cases. Here, there was evidence that appellant had successfully undergone treatment while in prison. There was also a two-week-old expert opinion regarding appellant's current psychological condition that opined that appellant was not likely to re-offend in the future. The state did not challenge the efficacy of appellant's treatment programs while in prison, however, either by asserting that treatment generally is ineffective or by showing that appellant had not responded to treatment, nor did the state challenge the expert's opinion that appellant is unlikely to re-offend. Instead, the state asked the judge to find appellant to be a sexual predator based solely on his fourteen-year-old conviction, which, as discussed earlier, is insufficient, without more, to support a sexual predator determination. Thus, not only did the state fail to meet its burden of proving that appellant is likely to engage in the future in one or more sexually oriented offenses, it also failed to rebut appellant's persuasive evidence to the contrary.
Appellant's first assignment of error is therefore sustained and the determination of the trial court finding appellant to be a sexual predator is vacated.
Judgment vacated.
It is, therefore, ordered that appellant recover from appellee costs herein.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate be sent to said 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.
______________________________________ TIMOTHY E. McMONAGLE, PRESIDING JUDGE:
ANNE L. KILBANE, J., CONCURS; and MICHAEL J. CORRIGAN, J., DISSENTS WITH DISSENTING OPINION.
1 Pursuant to R.C. 2950.01(D)(3), kidnapping is a sexually oriented offense where it is committed with a purpose to gratify the sexual needs or desires of the offender.