State v. Simon

[Cite as State v. Simon, 2020-Ohio-3841.]

IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
HANCOCK COUNTY

STATE OF OHIO,

PLAINTIFF-APPELLEE, CASE NO. 5-19-47

v.

EARL R. SIMON, OPINION

DEFENDANT-APPELLANT.

Appeal from Hancock County Common Pleas Court
Trial Court No. 1997 CR 00008

Judgment Affirmed

Date of Decision: July 27, 2020

APPEARANCES:

Brian A. Smith for Appellant

Phillip A. Riegle for Appellee
Case No. 5-19-47

ZIMMERMAN, J.

{¶1} Defendant-appellant, Earl R. Simon (“Simon”) appeals the December

3, 2019 judgment entry of the Hancock County Common Pleas Court classifying

him as a sexual predator under Ohio’s version of Megan’s Law. For the reasons

that follow, we affirm.

{¶2} The genesis of this case is the sexual conduct that occurred in January

through April 1996 involving Simon and a four-year-old-child victim. On January

14, 1997, the Hancock County Grand Jury indicted Simon on three criminal counts

including: Count One of rape in violation of R.C. 2907.02(A)(1)(b) with a penalty

specification under R.C. 2907.02(B), an aggravated-first-degree felony, and Counts

Two and Three of felonious sexual penetration in violation of R.C.

2907.12(A)(1)(b) also with penalty specifications under R.C. 2907.12(B),

aggravated-first-degree felonies.1 (Doc. No. 1).

{¶3} On January 22, 1997, Simon appeared for arraignment and entered

pleas of not guilty.2 (Doc. No. 5). Thereafter, on May 15, 1997, Simon withdrew

his pleas of not guilty and entered guilty pleas, under a written plea agreement, to

Counts Two and Three as amended. (Doc. Nos. 45, 46, 50, 113); (Dec. 3, 2019 Tr.

at 4). Specifically, in exchange for his guilty pleas, the State dismissed Count One

1
Because of the age of the victim at the time the offenses were committed, Simon was subject to a mandatory-
life sentence on all three criminal counts, if convicted. (See Doc. Nos. 1, 25).
2
On May 5, 1997, Simon underwent a pretest interview for a stipulated-polygraph examination where Simon
made admissions to the indicted conduct. (State’s Ex. 10); (Dec. 3, 2019 Tr. at 40, 43).

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and the penalty specifications as to Counts Two and Three. (Doc. Nos. 45, 46, 50).

The trial court accepted Simon’s guilty plea, and immediately sentenced Simon to

consecutive-indeterminate-prison terms of not less than 10 years nor more than 25

years as to Counts Two and Three, for an aggregate prison sentence of 20 years to

50 years in prison. (Doc. Nos. 50, 113); (Dec. 3, 2019 Tr. at 4). Importantly, Simon

was advised by the trial court that pursuant to his guilty plea and under R.C.

2950.09, he would be classified as a sex offender under Megan’s Law, the sex-

offender-classification law in effect at that time. (Id.); (Id. at 4-5). However, no

sex-offender-classification hearing was conducted at the time of sentencing. (Id.);

(Id.).

{¶4} Before the trial court journalized its sentence and on May 21, 1997,

Simon filed a motion in the trial court challenging the constitutionality of R.C.

2950.09. (Doc. Nos. 48, 49). Further, on March 18, 1999, Simon filed a motion

under R.C. 2947.06(B) requesting that the trial court grant him shock probation.3

(Doc. Nos. 61, 62). On July 27, 1999, the trial court took both of Simon’s motions

under advisement and ultimately denied both requests. (Doc. No. 64). After a status

conference with the trial court on September 2, 1999 (journalized on September 14,

1999) the parties agreed that Simon’s sex-offender-classification hearing under R.C.

3
R.C. 2947.06 is captioned as “Testimony after verdict to mitigate penalty; reports confidential”. R.C.
2947.06(1996) (current version of R.C. 2947.06 (2004)).

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2950.09 be continued until further order of the trial court.4 (Doc. Nos. 65, 113);

(Dec. 3, 2019 Tr. at 5).

{¶5} On December 3, 2019, the trial court conducted a sexual-classification

hearing for Simon.5 (Doc. No. 97). Simon was personally present for the hearing,

and after taking evidence, the trial court classified Simon as a sexual predator under

Megan’s Law.6 (Doc. Nos. 102, 113); (Dec. 3, 2019 Tr. at 5).

{¶6} Simon filed his notice of appeal on December 12, 2019. (Doc. No. 105).

He raises one assignment of error for our review.

Assignment of Error

Because the record does not show competent, credible evidence
that the Appellant met the criteria for classification as a “sexual
predator” under R.C. 2950.09(B), the trial court erred in
classifying Appellant as a “sexual predator” under Megan’s Law.

4
Simon filed a writ of habeas corpus and following our dismissal of his writ on March 3, 2000 for his failure
to comply with the mandates of R.C. 2725.04(D), Simon filed a petition for postconviction relief in the trial
court on July 13, 2000. See State v. Simon, 3d Dist. Hancock No. 5-00-06. (Case No. 5-00-06, Mar. 3, 2000
JE); (Doc. Nos. 66, 67, 68). The trial court denied his request for an evidentiary hearing and his petition on
August 17, 2000. (Doc. Nos. 69, 70, 71). On September 1, 2000, Simon filed a motion requesting the trial
court issue findings of fact and conclusions of law addressing its denial of his petition for postconviction
relief. (Doc. No. 72). Thereafter, Simon appealed the trial court’s denial of his petition for postconviction
relief and ultimately voluntarily dismissed his appeal. See State v. Simon, 3d Dist. Hancock No. 5-00-23;
(Case No. 5-00-23, Oct. 3, 2000 JE). (Doc. Nos. 73, 74, 75). Simon filed a successive petition for
postconviction relief on October 16, 2000, a motion to supplement evidentiary matters in support of his
petition on February 14, 2001, and a motion for appointment of counsel on March 7, 2001, all of which the
trial court denied. (Doc. Nos. 79, 80, 81, 84, 85, 86, 87, 88). Subsequently, Simon appealed the denial of
his successive petition for postconviction relief which was later dismissed for want to prosecution. See State
v. Simon, 3d Dist. Hancock No. 5-01-16; (Case No. 5-01-16, Oct. 3, 2001 JE). (Doc. Nos. 89, 90, 91).
5
While Simon’s maximum prison term is not set to expire until January 5, 2047, he was scheduled to be
released from prison on parole supervision on December 4, 2019. (Doc. Nos. 101, 113). (Dec. 3, 2019 Tr.
at 8, 51); (State’s Ex. 5).
6
The parties do not contest that Megan’s Law was applicable under the facts presented. (Doc. No. 113);
(Dec. 3, 2019 Tr. at 6, 11-13).

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{¶7} In his sole assignment of error, Simon argues that the trial court erred

by classifying him as a sexual predator. Specifically, he argues that the trial court

did not have competent, credible evidence to meet the criteria for classifying Simon

as a sexual predator under R.C. 2950.09(B) since the factors weighed in his favor.

For the reasons that follow, we disagree.

Standard of Review

{¶8} Because sex-offender-classification proceedings under R.C. Chapter

2950 are civil in nature under Megan’s Law, “[o]n appeal, this Court reviews a trial

court’s sexual-predator designation ‘under the civil manifest-weight-of-the-

evidence standard and [the trial court’s determination] may not be disturbed when

the judge’s findings are supported by some competent, credible evidence.’” State

v. Johnson, 3d Dist. Wyandot Nos. 16-13-07 and 16-13-08, 2013-Ohio-4113, ¶ 9,

quoting State v. Wilson, 113 Ohio St.3d 382, 2007-Ohio-2202, syllabus.

Analysis

{¶9} The term “sexual predator” is defined as a “person [who] has been

convicted of or pleaded guilty to committing a sexual oriented offense and is likely

to engage in the future in one or more sexually oriented offenses.” R.C. 2950.01(E)

(1997) (current version R.C. 2950.01(E)(1) (2019)). Felonious sexual penetration

was a “sexually oriented offense.” 2907.12(A)(1)(b) (1993), repealed in Am.H.B.

No. 445, 1996 Ohio Laws 155 (1996); 2950.01(D)(1) (1997) (current version R.C.

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2950.01(A) (2019)). See also R.C. 2907.01(A) (1991), (current version of R.C.

2907.01(A) (2019)); 2907.02(A)(1)(b) (1993), (current version of R.C.

2907.02(A)(1)(b) (2002)).

{¶10} R.C. 2950.01 provides in its pertinent part:

(G) An offender is “adjudicated as being a sexual predator” if any of
the following applies:

***

(2) Regardless of when the sexually oriented offense was
committed, on or after the effective date of this section, the offender
is sentenced for a sexually oriented offense, and the sentencing judge
determines pursuant to division (B) of section 2950.09 of the Revised
Code that the offender is a sexual predator.

* * *.

R.C. 2950.01(G)(2) (1997) (current version of R.C. 2950.01(E), (F) (2019)). Here,

the trial court found that Simon had been “convicted of two (2) sexually oriented

offenses, two (2) counts of Felonious Sexual Penetration each aggravated felonies

of the first degree, in violation of Ohio Revised Code §2907.12(A)(1)(b), both

involving a four (4) year old child.” (Doc. No. 102). Thus, Simon’s hearing was

conducted under R.C. 2950.09.

{¶11} R.C. 2950.09(A) states that

a person who * * * has been convicted of * * * a sexually oriented
offense may be classified as a sexual predator for the purposes of this
chapter only in accordance with division (B) or (C) of this section.

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R.C. 2950.09(A) (1996) repealed in Am.S.B. No. 10, 2007 Ohio Laws 10 (2007).

R.C. 2950.09(B)(1) requires the trial court “conduct a hearing to determine whether

the offender is a sexual predator” providing Simon and the State with “notice of the

date, time, and location of the hearing.” R.C. 2950.09(B)(1) (1996) repealed in

Am.S.B. No. 10, 2007 Ohio Laws 10 (2007). Importantly, Simon and the State were

properly notified of the classification hearing and presented evidence in the trial

court. (Dec. 3, 2019 Tr. at 1-76, 100); (Doc. No. 113).

{¶12} When making the determination regarding a sexual-predator

designation under R.C. 2950.09(B)(2), 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 offenses;

(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

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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.

R.C. 2950.09(B)(2)(a)-(j) (1996) repealed in Am.S.B. No. 10, 2007 Ohio Laws 10

(2007). At the conclusion of the hearing, “the judge shall determine by clear and

convincing evidence whether the offender is a sexual predator” under R.C.

2950.09(B)(3). R.C. 2950.09(B)(3) (1996) repealed in Am.S.B. No. 10, 2007 Ohio

Laws 10 (2007).

{¶13} Here, the parties stipulated to the trial court’s taking of judicial notice

of contents of the trial court’s file folder on Simon, the admission of State’s Exhibits

1-11, and the identification of Simon.7 (Doc. No. 102); (Dec. 3, 2019 Tr. at 6-9).

At Simon’s classification hearing, the State presented two witnesses: Kathy Elliot

(“Elliot”), a former investigator for Hancock County Job and Family Services and

7
The parties agreed that State’s Exhibits 2, 3, 4, and 6 were to remain under seal. (Doc. Nos. 102, 113);
(Dec. 3, 2019 Tr. at 11).

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Dana Dunbar (Dunbar), an investigator for the Hancock County Prosecutor’s

Office. (Doc. Nos. 102, 113); (Dec. 3, 2019 Tr. at 13-63). Only Simon testified for

the defense at the sexual-classification hearing. (Doc. Nos. 102, 113); (Dec. 3, 2019

Tr. at 63-76).

{¶14} In addressing the relevant-statutory factors in the instant case, the

record supports that the trial court heard testimony with regard to R.C.

2950.09(B)(2)(a) as to Simon’s age. Specifically, the State presented the testimony

of Elliot (with 25 years’ experience in child welfare) who testified that Simon’s

advanced age of 73 did not lessen his risk of reoffending, given that, the offenses

involved digital penetration. (Dec. 3, 2019 Tr. at 16-17, 25-28).

{¶15} As to the factor under R.C. 2950.09(B)(2)(b), the State presented the

testimony of Dunbar regarding Simon’s criminal history that included a passing-

bad-checks conviction from Allen County, a record of public intoxication and

criminal trespass from Fort Lauderdale, Florida (in 1968), and an arrest for

aggravated assault in Tampa, Florida (in 1987). (Id. at 52). Further, at the time of

Simon’s arrest in the case sub judice, he had an unexecuted warrant for his arrest

for an insufficient-funds charge out of Pike County, Ohio. (Id. at 54).

{¶16} As to the factor under R.C. 2950.09(B)(2)(c), Elliot testified as to the

minor-child-victim’s age and the barriers young children have when disclosing

sexual conduct with adults. (Id. at 28). Specifically, Elliot testified that children in

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this victim’s age range have difficulty explaining details and are compliant and

trustful when instructed not to disclose. (Id.). According to Elliot, Simon’s choice

of a minor-child victim in this age range also placed him in a higher-risk category.

(Id.)

{¶17} The record further supports that the trial court considered the factor

under R.C. 2950.09(B)(2)(d), in regards to Elliot’s testimony that this case involved

a single-minor-child victim; however, Elliot also testified of her awareness of at

least one unsubstantiated allegation that Simon had been previously accused of

“sexually assaulting another sibling’s child” in this same time frame. (Id. at 41-42).

{¶18} The trial court considered the factor under R.C. 2950.09(B)(2)(e)

when it heard testimony from Elliot that Simon did not use any drugs or alcohol to

impair the victim. (Id. at 35).

{¶19} The record also supports that the trial court considered R.C.

2950.09(B)(2)(f) regarding sex-offender treatment when Simon testified that he

participated in three-to-four months of sex-offender classes while in prison, even

though Simon could not recall the specific time frames of the classes. (Id. at 67).

{¶20} The record also supports that the trial court considered R.C.

2950.09(B)(2)(g) regarding Simon’s mental illness or disability when Elliot and

Dunbar testified that they were unaware if Simon suffered from any mental illness

or disability. (Id. at 36, 58). Moreover, the parties stipulated to the admission of

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State’s Exhibits 3 and 4 which addressed Simon’s intelligence quotient as being 81,

“which falls within the range of Borderline intelligence.” (State’s Exs. 3, 4).

{¶21} Under R.C. 2950.09(B)(2)(h), the trial court considered Elliot’s

testimony as to Simon’s pattern of abuse on the minor-child victim wherein Simon

had admitted to fondling, digitally penetrating, performing cunnilingus on, exposing

his penis to, and having the minor-child victim touch his penis. (Id. at 40, 43);

(State’s Ex. 10). Importantly, Simon’s abuse of the child occurred while he acted

as her primary caretaker/daycare provider (on a weekly basis) over a four-month

time frame in 1996. (Id. at 18-21, 31, 39).

{¶22} The trial court also considered R.C. 2950.09(B)(2)(i) when Elliot

testified that Simon’s continued-sexual conduct with the minor-child victim (after

the child told him that he hurt her) was cruel and resulted in the intentional infliction

of pain on the minor-child victim. (Id. at 36-37).

{¶23} The trial court also considered R.C. 2950.09(B)(2)(j) when Elliot

testified as to Simon’s failure to accept responsibility for his actions and the impact

that such lack of acceptance has on successful outcomes of sex-offender

programming. (Id. at 26, 32).

{¶24} Finally, the record supports that the trial court noted in open court and

in its judgment entry that it considered “the arguments of counsel * * * the evidence

presented * * * the factors set forth in R.C. §2950.09, [] the recidivism and

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seriousness factors” in R.C. 2929.12 “(B), (C), (D) and (E) * * * [, and] the

legislative intent of R.C. Chapter 2950.” (Doc. No. 102). (See Dec. 3, 2010 Tr. at

95-99, 101). See R.C. 2950.09(B). Ultimately, the trial court determined by clear

and convincing evidence that Simon was “likely to engage in the future in one or

more sexually oriented offenses under R.C. 2950.01(E)(1)” and classified Simon as

a sexual predator under R.C. 2950.09(B)(3).8

{¶25} In challenging his sexual-predator designation, Simon argues that

there was a lack of evidence demonstrating that he is likely to commit future

offenses. Compare Johnson, 2013-Ohio-4113, at ¶ 19. Simon supports this

argument by noting his convictions involve a single victim (as in Johnson) as well

as evidence of his remorse. He further points to his lack of prior sexual-oriented-

offense convictions, his frailty, his limited-criminal record, the lack of impairment

and cruelty (to the child victim), his professed-mental disability, and his inability to

locate housing.9 Id. (See Appellant’s Brief at 7-13). However, when making these

8
Although the trial court applied the 2007 versions of R.C. 2950.01 and 2950.09 and we apply the 1997
version of R.C. 2950.01 and 1996 version of R.C. 2950.09, the result is the same. (See Doc. Nos. 102, 113).
9
We note that the remorse of and prejudice to an offender are not enumerated factors under R.C.
2950.09(B)(2); however, they may be considered under R.C. 2950.09(B)(2)(j), the catch-all provision. See,
State v. Clutter, 4th Dist. Washington No. 99CA19, 2000 WL 134730, *4 (Jan. 28, 2000) (considering
Clutter’s irresponsible lifestyle under the catch-all provision of R.C. 2950.09(B)(2)(j)); State v. Leonard,
10th Dist. Franklin No. 00AP-1229, 2001 WL 697999, *5 (June 21, 2001), (considering Leonard’s
characterization of the victim as a seductress and instigator under R.C. 2950.09(B)(2)(j)’s catch-all
provision); State v. Harris, 9th Dist. Lorain No. 00CA007691, 2001 WL 866258, *5 (Aug. 1, 2001),
(considering Harris’s love letters to the victim under the catch-all provisions of R.C. 2950.09(B)(2)(j)); State
v. Davis, 11th Dist. Lake No. 2003-Ohio-6741, 2003 WL 22952574, *4 (Dec. 3, 2003), (considering Davis’s
admissions to other uncharged sexual conduct involving different victims under R.C. 2950.09(B)(2)(j), as a
catch-all provision).

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arguments, Simon neglects to consider that the factors listed in R.C. 2950.09(B)(2)

were drafted by the legislature to assist the trial court in determining an offender’s

likelihood of recidivism. Id., citing State v. Thompson, 92 Ohio St.3d 584, 587-588

(2001).

{¶26} Upon our review of the record, it is clear that the trial court considered

the totality of the circumstances of Simon’s likelihood of recidivism, and under the

evidence presented, the sexual-predator designation was warranted. (See Doc. No.

102). As such, we conclude that the findings of the trial court are supported by

competent, credible evidence.

{¶27} For these reasons, we cannot conclude that the trial court erred in

designating Simon as a sexual predator. Accordingly, Simon’s sole assignment of

error is overruled.

{¶28} Having found no error prejudicial to the appellant herein in the

particulars assigned and argued in his assignment of error, we affirm the judgment

of the trial court.

Judgment Affirmed

SHAW, P.J. and PRESTON, J., concur.

/jlr

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