I concur with the judgment rendered herein because I find, based upon the record before us, that there is sufficient competent evidence for the trial court to have determined, by clear and convincing evidence, that Appellant is a sexual predator. However, I am compelled to write separately because I cannot agree with the majority's endorsement of the trial court's consideration of the underlying facts of the charges for which Appellant was ultimately acquitted.
In spite of the fact that it was not raised as an assignment of error, the majority discusses the propriety of the court's consideration of the very charges for which Appellant was acquitted for the purpose of determining his status as a sexual predator. I do not share the majority's enthusiasm for this consideration.
In State v. Cook (1998), 83 Ohio St.3d 404, 425, the Supreme Court of Ohio stated that "[a] sexual predator hearing is similar to sentencing or probation hearings where it is well settled that the Rules of Evidence do not strictly apply."
Within the context of sentencing hearings, it has long been established under Ohio law that it is improper for a court to sentence a defendant based upon the consideration of the underlying facts of an acquitted charge. See Columbus v. Jones (1987), 39 Ohio App.3d 87; State v. Patterson (1996), 110 Ohio App.3d 264; State v. Henley (Oct. 29, 1998), Cuyahoga App. No. 74305, unreported.
While there may be some authority to the contrary, I remain firmly convicted that such considerations are entirely impermissible. The Supreme Court of the United States has held that under the federal sentencing guidelines, it is appropriate to consider the underlying facts of an acquitted charge when determining a sentence for the convicted offense. United Statesv. Watts (1997), 519 U.S. 148, 117 S.Ct. 633, 136 L.Ed.2d 554. Subsequent to this federal decision, one appellate district in this state has held that Watts overrules the authority of Columbusv. Jones, supra. See State v. Epley (Aug. 25, 1998), Franklin App. No. 97APA11-1467, unreported. However, two other appellate jurisdictions have found that Watts only applies to sentencing under the federal guidelines and does not overrule Jones. SeeState v. Goodman (Jan. 26, 1998), Stark App. No. CA00171, unreported; State v. Henley (Oct. 29, 1998), Cuyahoga App. No. 74305, unreported. I am far more comfortable with the position taken by the Cuyahoga County Court of Appeals in Henley, supra, that "while Watts may overrule Ohio case law with respect to federal constitutional issues, it does not overrule rulings interpreting Ohio Sentence law." Thus, I would conclude that the trial court's reliance on the facts *Page 767 of any acquitted charges to determine Appellant's classification as sexual predator was wholly improper.
The majority appears to reason that because the clear and convincing burden of proof utilized in a sexual predator hearing is lower than the burden of proof necessary to render a guilty verdict, and because the effect of the sexual predator determination is remedial rather than punitive, the consideration of acquitted charges should be permitted. I am convinced that these distinctions merely cloud the issue. Indeed, the clear and convincing standard applicable in the sexual predator setting is applied to determine whether the offender is "likely to engage in the future in one or more sexually oriented offenses." R.C.2950.01(E). The lesser burden is not applicable to determine whether the offender committed other sexually oriented offenses for which a jury rendered a not guilty verdict.
R.C. 2950.09(B)(2) provides the list of factors that the court is required to consider. Included therein are provisions to consider the offender's prior criminal record and whether the offender previously has been convicted of or pleaded guilty to any criminal offense. See R.C. 2950.09(B)(2)(b) and (f). The finding that the consideration of acquitted charges is proper not only flies in the face of the presumption of innocence afforded to all individuals acquitted of a criminal offense, but it also, I believe, tends to chill the right to a jury trial.
The record presented to this court, convinces me that even without any consideration of the charges for which Appellant was acquitted, the trial court's decision to adjudicate Appellant a sexual predator was not in error. However, based upon the foregoing, I cannot concur with the reasoning expressed by the majority today.