For the reasons that follow, I respectfully dissent from that portion of the majority opinion which concludes that an updated psychiatric evaluation was reasonably necessary to aid the trial court in determining the likelihood of recidivism on the part of appellant to engage in a sexually oriented offense in the future.
In State v. Eppinger (2001), 91 Ohio St.3d 158, 162, the Supreme Court of Ohio had an opportunity to weigh in on the issue of appointing an expert for an indigent defendant for use at a sexual predator hearing:
"In some instances, offenders will have several sexually oriented convictions, or will clearly fit a variety of the factors listed in R.C. 2950.09(B)(2)(a) through (j). An offender who preys on children, for example, may fit the pedophile profile, a class of sex offenders known for their especially high rate of recidivism. There may be sufficient evidence in the transcripts, victim impact statements, presentence investigation reports, prior history of arrests and convictions, age, etc., presented at the sexual offender classification hearing with respect to the R.C. 2950.09(B)(2) factors as they relate to the likelihood of reoffending. In those situations, appointment of an expert for an indigent offender may be unwarranted. But a person who has been convicted of or who has pled guilty to committing one sexually oriented offense is not necessarily likely to engage in the future in one or more sexually oriented offenses. One sexually oriented offense is not a clear predictor of whether that *Page 576 person is likely to engage in the future in one or more sexually oriented offenses, particularly if the offender is not a pedophile. Thus, we recognize that one sexually oriented conviction, without more, may not predict future behavior. Therefore, the appointment of an expert may be warranted to aid the trial court in determining the likelihood of recidivism." (Emphasis added.)
Accordingly, the Supreme Court held that "an expert witness shall be provided to an indigent defendant at an R.C. 2950.09(B)(1) sexual offender classification hearing if the court determines, within its sound discretion, that such services are reasonably necessary to determine whether the offender is likely to engage in the future in one or more sexually oriented offenses within the meaning of R.C. 2950.01(E)." (Emphasis added.) Eppinger at syllabus.
Here, after applying Eppinger, the majority determined that a psychiatric evaluation was reasonably necessary to aid the trial court in determining appellant's risk of recidivism because the only psychiatric evaluation presented to the trial court was six years old and was a drug and alcohol assessment, not a sexual offender evaluation. It is this point on which I disagree with the majority.
In the instant matter, appellant was convicted of two sexually oriented offenses against a minor child, to-wit: gross sexual imposition and kidnapping. Additionally, in a separate case, appellant pled guilty toattempted rape of a minor child involving his girlfriend's daughter. Further, the presentence investigation report confirmed that appellant was "under investigation for possible physical and sexual abuse" of his girlfriend's minor son. However, because the child denied the claims, "the abuse was unsubstantiated and no formal charges were brought against [appellant]." Nevertheless, the mother was ordered "not [t]o associate or provide information to [appellant] regarding [her son] and that [appellant] was to have no contact with [the child]. In short, the presentence investigation report and appellant's prior criminal history indicates that he has been convicted of three sexually oriented offenses involving minor children.
In contrast, the defendant in Eppinger had been convicted of only one sexually oriented offense. From this, the Supreme Court of Ohio concluded that a psychiatric or psychological expert "was reasonably necessary to aid in determining whether the defendant is likely to engage in one or more sexually oriented offenses in the future." Eppinger at 163.
Given that appellant has a history of committing sexually oriented offenses against minor children, this is not a case where a psychiatric evaluation was reasonably necessary to aid the trial court in determining the likelihood of recidivism. See, e.g., State v. Ingram (May 11, 2001), Hamilton App. No. C-000718, unreported, 2001 WL 497095, at 1 (holding that a psychiatric evaluation was not reasonably necessary when the defendant had been convicted of more than one sexually oriented offense). *Page 577
Therefore, under the circumstances presented in this case, I would hold that the trial court did not abuse its discretion in denying appellant's motion for the appointment of a psychiatric expert. The presentence investigation report and appellant's prior criminal record dictates that appellant has a history of preying on minor children. As the Supreme Court recognized in Eppinger, "[a]n offender who preys on children * * * may fit the pedophile profile, a class of sex offenders known for their especially high rate of recidivism." (Emphasis added.) Id. at 162.
Certainly, there could be instances where a sex offender may be entitled to a psychiatric evaluation if, in accordance with Eppinger, he/she demonstrates that such an evaluation is reasonably necessary to determine the likelihood of recidivism. However, under the facts presented in this particular case, I believe that appellant has failed to meet the burden of reasonable necessity.
For these reasons, I disagree with the majority's treatment of the first assignment of error. Instead, I would hold that a psychiatric evaluation was not reasonably necessary as the record contained sufficient evidence relating to the likelihood of appellant reoffending.
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