State v. Wilson

Lanzinger, J.,

concurring in part and dissenting in part.

{¶ 43} I concur in the majority opinion to the extent that it holds that classifications made under R.C. 2950.09 are not to be disturbed when they are supported by competent, credible evidence; I dissent from the majority’s labeling of sex-offender-classification proceedings as civil in nature. Furthermore, I would reverse the court of appeals’ judgment in part only and would hold that this case should be remanded to the trial court for both an order that the appellant is a habitual offender pursuant to R.C. 2950.09(E)(1) and for further proceedings to determine whether he should be subject to the community-notification provisions in R.C. 2950.10 and 2950.11.

{¶ 44} The majority relies upon two cases for its statement that sex-offender-classification proceedings are civil in nature. In State v. Cook (1998), 83 Ohio St.3d 404, 700 N.E.2d 570, it was held that the registration and notification requirements within R.C. Chapter 2950 did not constitute ex post facto legislation because the legislation was remedial and was a reasonable measure designed to protect the public. Id. at 417, 700 N.E.2d 570. In State v. Williams (2000), 88 Ohio St.3d 513, 728 N.E.2d 342, the statute was held not to violate the Double Jeopardy Clause because it was “neither ‘criminal,’ nor a statute that inflicts punishment.” Id. at 528, 728 N.E.2d 342.

{¶ 45} R.C. Chapter 2950 has been amended since Cook and Williams, however, and the simple registration process and notification procedures considered in those two cases are now different. The following comparisons show that the current laws are more complicated and restrictive than those at issue in Williams and Cook. First, the label “sexual predator” is now permanent for adult offenders, R.C. 2950.07(B)(1), whereas previously, offenders had the possibility of having it removed. Former R.C. 2950.09(D), Am.Sub.H.B. No. 180, 146 Ohio *392Laws, Part II, 2560, 2621-2623. Second, registration duties are now more demanding and therefore are no longer comparable to the inconvenience of renewing a driver’s license, as Cook had analogized. Cook, 83 Ohio St.3d at 418, 700 N.E.2d 570. Persons classified as sex offenders must now personally register with the sheriff of the county in which they reside, work, and go to school. R.C. 2950.04(A). Sexual predators must personally register with potentially three different sheriffs every 90 days, R.C. 2950.06(B)(1)(a), which is hardly comparable to the slight inconvenience of having one’s driver’s license renewed every four years. Third, community notification has expanded to the extent that any statements, information, photographs, or fingerprints that an offender is required to provide are public record and much of that material is now included in the sex-offender database maintained on the Internet by the attorney general. R.C. 2950.081. In Cook, we considered it significant that the information provided to sheriffs by sex offenders could be disseminated to only a restricted group of people. Cook, 83 Ohio St.3d at 422, 700 N.E.2d 570. Fourth, new restrictions have been added to R.C. Chapter 2950. Enacted initially as part of Sub.S.B. No. 5, 125th General Assembly, approved July 31, 2003, R.C. 2950.031 prohibits all classified sex offenders, not just those convicted of sex offenses against children, from residing within 1,000 feet of any school premises. And fifth, a sheriff is now permitted to request that the sex offender’s landlord or the manager of the sex offender’s residence verify that the sex offender currently resides at the registered address. R.C. 2950.111(A)(1). According to R.C. 2950.111(C), “[a] sheriff or designee of a sheriff is not limited in the number of requests that may be made under this section regarding any registration, provision of notice, or verification, or in the number of times that the sheriff or designee may attempt to confirm, in manners other than the manner provided in this section, that an offender * * * currently resides at the address in question.”

{¶ 46} While protection of the public is the avowed goal of R.C. Chapter 2950, we cannot deny that severe obligations are imposed upon those classified as sex offenders. All sexual predators and most habitual sex offenders are expected, for the remainder of their lives, to register their residences and their employment with local sheriffs. Moreover, this information will be accessible to all. The stigma attached to sex offenders is significant, and the potential exists for ostracism and harassment, as the Cook court recognized. Id., 83 Ohio St.3d at 418, 700 N.E.2d 570. Therefore, I do not believe that we can continue to label these proceedings as civil in nature. These restraints on liberty are the consequences of specific criminal convictions and should be recognized as part of the punishment that is imposed as a result of the offender’s actions.

{¶ 47} Nevertheless, I concur with the majority that the trial judge’s findings on classification pursuant to R.C. 2950.09 should not be disturbed if they are supported by competent, credible evidence. R.C. 2950.09(B)(4) requires clear and *393convincing evidence before a judge classifies an offender as a sexual predator. Thus, to determine that a defendant is not a sexual predator, as the trial court did here, a court need find only that the evidence does not clearly and convincingly support a finding that the offender is likely to commit another sex offense. In State v. Schiebel (1990), 55 Ohio St.3d 71, 74-75, 564 N.E.2d 54, we stated: “Where the proof required must be clear and convincing, a reviewing court will examine the record to determine whether the trier of facts had sufficient evidence before it to satisfy the requisite degree of proof. Ford v. Osborne (1887), 45 Ohio St. 1, 12 N.E. 526, paragraph two of the syllabus. However, it is also firmly established that judgments supported by some competent, credible evidence going to all the essential elements of the case will not be reversed by a reviewing court. An appellate court should not substitute its judgment for that of the trial court when there exists competent and credible evidence supporting the findings of fact and conclusions of law rendered by the trial court judge.” Thus, the appropriate inquiry by the appellate court should be, “Is there sufficient evidence to support the trial judge’s finding that the state did not prove by clear and convincing evidence that the offender was likely to commit another sex offense?”

{¶ 48} In this case, I agree that the court of appeals improperly substituted its own view of the evidence for the trial court’s. As the dissenting appellate judge pointed out, there was strong evidence supporting the court’s ruling. State v. Wilson, Cuyahoga App. No. 85015, 2005-Ohio-4994, 2005 WL 2303990, at ¶ 29-37. “Even if defendant had posed a future threat at the time he committed the crimes, therefore, the court had the substantial evidence to rule that he no longer posed a threat and no longer fit the profile of a sexual predator.” Id. at ¶ 37. Most important, deference is to be given the trial court on findings of fact. See State v. Vrabel, 99 Ohio St.3d 184, 2003-Ohio-3193, 790 N.E .2d 303, ¶ 33, quoting State v. Cowans (1999), 87 Ohio St.3d 68, 84, 717 N.E.2d 298 (“Deference on these issues should be given to those ‘who see and hear what goes on in the courtroom’ ”).

{¶ 49} I would reverse the court of appeals’ holding that contradicts the trial judge’s determination, which was supported by the evidence, that Wilson is not a sexual predator. Nevertheless, I believe that the court of appeals was correct in holding that Wilson is a habitual sex offender pursuant to R.C. 2950.09(E)(1) because he pleaded guilty to a sexually oriented offense and previously had been convicted of a sexually oriented offense. See R.C. 2950.01(B); State v. Williams, 88 Ohio St.3d at 518, 728 N.E.2d 342. I do not, therefore, concur with the majority that the trial judge’s classification of Wilson as a sexually oriented offender should be reinstated. I would remand for the trial court to determine pursuant to R.C. 2950.09(E)(2) whether, as a habitual sexual offender, Wilson *394should be subject to the community-notification provisions contained in R.C. 2950.10 and 2950.11.

William D. Mason, Cuyahoga County Prosecuting Attorney, and Mary H. McGrath, Assistant Prosecuting Attorney, for appellee. Robert L. Tobik, Cuyahoga County Public Defender, and John T. Martin, Assistant Public Defender, for appellant. Donovan and O’Connor, JJ., concur in the foregoing opinion.