COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 73031 STATE OF OHIO : : JOURNAL ENTRY Plaintiff-Appellee : : and -vs- : : OPINION PAUL NELSON : : Defendant-Appellant : : DATE OF ANNOUNCEMENT DECEMBER 23, 1999 OF DECISION: CHARACTER OF PROCEEDING: Criminal appeal from Common Pleas Court Case No. CR-244838 JUDGMENT: Affirmed. DATE OF JOURNALIZATION: APPEARANCE: For Plaintiff-Appellee: WILLIAM D. MASON, ESQ. Cuyahoga County Prosecutor WILLIAM R. CAINE, ESQ. Assistant County Prosecutor 8th Floor Justice Center 1200 Ontario Street Cleveland, Ohio 44113 For Defendant-Appellant: SCOTT ROGER HURLEY, ESQ. Assistant Public Defender 100 Lakeside Place 1200 West Third Street Cleveland, Ohio 44113 PATRICIA ANN BLACKMON, J.: -2- Appellant Paul Nelson appeals a decision of the trial court designating him a sexual predator under R.C. 2950.09(B)(1). He assigns twelve errors1 for our review; eleven raise constitutional issues that the Ohio Supreme Court resolved in State v. Cook (1999), 83 Ohio St.3d 404 and that this court resolved in State v. Ward (Jan. 28, 1999), Cuyahoga App. No. 72371, unreported. Therefore, assigned errors one and two and four through twelve are overruled. The third assigned error raises the sufficiency of the evidence used by the trial court to designate Nelson as a sexual predator. Having reviewed the transcript, the presentence report, and the briefs, we affirm the trial court's decision. The apposite facts follow. After Nelson had served about seven years for rape of a 5 year old, the trial court held a hearing on a call back procedure to determine if under R.C. 2950.09(B)(2) Nelson fit the sexual predator status. A sexual predator under R.C. 2950.01(E) is a person convicted of a sexually oriented offense who is likely to reoffend. R.C. 2950 places certain notification and registration requirements on a convicted sexually oriented offender designated a sexual predator. In 1990, the state indicted Nelson for rape and gross sexual imposition. After a plea agreement, he pled guilty to one count of rape, and the trial court sentenced him to ten to twenty-five years in prison. On the return from prison for the sexual predator 1See Appendix -3- determination, the trial judge who sentenced Nelson conducted the sexual predator hearing. At the hearing, the trial judge indicated that he had read the presentence report and incorporated it by reference into the record. He also incorporated into the record by reference the journal entries, the docket entries, the plea transcript, and the victim's age at the time of the offense. After the trial court denied Nelson's motions on the constitutionality of the sexual predator law, the trial court determined Nelson to be a sexual predator. Because the trial court based the sexual predator determination on the presentence report and the victim's age, we reviewed the report as well. The report showed Nelson raped a 5 year old boy. Nelson took the child into the bathroom, blindfolded him, lubricated him with an unidentified substance, placed his finger in the victim's rectum, and then inserted his penis. Later the child complained of pain and told his mother what occurred. Nelson at the time was 26 years old, a family friend who was babysitting the boy. In addition to these facts, the report showed that Nelson admitted to having a problem with alcohol. At the time, Nelson was 5'8" tall and weighed 137 pounds. He was referred to the psychiatric clinic, but the details if any of the clinic's review were neither in the presentence report nor referenced in any manner. The presentence report did show a rape and a gross sexual imposition on July 4, 1987, which was no billed. Another case with a separate case number showed a charge on August 22, 1988 for -4- rape and gross sexual imposition, which was dismissed. These were separate cases and separate case numbers from the underlying offense in this case, which Nelson pled guilty to in 1990. Finally, the probation officer recommended the maximum penalty for the offense in this case. He also opined that Nelson would reoffend and stated in his report that Nelson thinks about rape and plans his manipulation of his victims. Nelson, however, argues that the sole evidence before the court in the sexual predator hearing was old conviction data and not sufficient to sustain the clear and convincing standard. We disagree. This court has held that an offender's conviction of an underlying sexually oriented offense without more is insufficient to sustain a clear and convincing finding of sexual predator status. State v. Ward, supra. In Ward, the only evidence before the court was the so-called old conviction data of Ward's plea to attempted felonious sexual penetration of a victim under the age of 13 years. In Ward, this court was particularly troubled that the trial court did not consider or reference the contents of the presentence report or take testimony from either the police officer or victim, both of whom were willing to testify. This court remanded Ward's case for more information. Ward, of course, is distinguishable for this case. In this case, we had a presentence report that detailed the nature of the crime, the child's age, a prior charge of rape and gross sexual imposition, and a probation officer's opinion that Nelson would reoffend. We gleaned from the -5- record that the probation officer reached his conclusion from his interview with Nelson and other information. The presentence report in this case aided the trial court and this court in reaching the conclusion that Nelson would reoffend. We know from Cook that a presentence report may be a powerful source of information in these sexual predator cases. In Cook, the Supreme Court held that reliable hearsay such as a presentence investigation report is appropriate for the trial court to rely upon for its determination. Of course, we are mindful of this court's recent decision in State v. Hart (March 18, 1999), Cuyahoga App. No. 73307, unreported. In Hart, this court frowned on the use of old conviction data as the sole basis for the sexual predator designation. This court pointed out that the presentence report was not particularly helpful. In Hart, the defendant was convicted of raping a thirteen-year-old child. The evidence showed that both the victim and the defendant had been consuming alcohol. The defendant had prior convictions for domestic violence and attempted receiving stolen property. We held that the evidence in that case did not demonstrate a pattern of conduct in committing sexual offenses. Id. We believe that Hart is different from this case. We note that many ways exist in showing a pattern of conduct in committing sexual offenses; for example, the court may look to the number of victims, the sexual abuse over a period of time involving one victim, the prior sexual offense, the prior criminal behavior, the -6- age of the victim, and the nature of the crime. In any event, we should be guided at least by the factors outlined in the sexual predator statute. Here, the trial court considered the nature of the offense, the presentence investigation, and the age of the child, which included R.C. 2950.09(B)(2)(a)(c)(h)(i)(j) factors. These factors specifically included the blindfolding of a 5 year boy and raping him. The probation officer opined that Nelson displayed an obsession with young children and would probably victimize children in the future. Also, under factor (j), the report showed a prior arrest for a sexual offense. Again, we stress that the age of the victim is a powerful factor when determining the sexual predator status. The fact that the victim of a sexually oriented offense was a young child is highly relevant to the analysis in light of `the overwhelming statistical evidence supporting the high potential of recidivism among sex offenders whose crime involves the exploitation of young children.' State v. Stauter (July 17, 1998), Greene App. No. 97 CA 72, unreported. In this case, the child was 5 years old, and Nelson was his babysitter, a position of trust. Finally, R.C. 2950.09(B)(2) does not require that all listed factors be met before an offender can be classified as a sexual predator. It requires the trial court to consider all relevant factors in making its determination. State v. Tracy (May 20, 1998), Summit App. No. 18623, unreported. Here, the trial court stated it considered the prior conviction data, the presentence -7- report, and the age of the victim. Accordingly, the trial court's judgment is sustained. Judgment affirmed. It is ordered that appellee recover of appellant its costs herein taxed. The Court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this Court directing the Common Pleas Court to carry this judgment into execution. The defendant's conviction having been affirmed, any bail pending appeal is terminated. Case remanded to the trial court for execution of sentence. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. TERRENCE O'DONNELL, P.J., CONCURS. TIMOTHY E. McMONAGLE, J., CONCURS IN JUDGMENT ONLY) PATRICIA ANN BLACKMON JUDGE N.B. This entry is an announcement of the court's decision. See App.R. 22(B), 22(D) and 26(A); Loc.App.R. 22. This decision will be journalized and will become the judgment and order of the court pursuant to App.R. 22(E) unless a motion for reconsideration with supporting brief, per App.R. 26(A), is filed within ten (10) days of the announcement of the court's decision. The time period for review by the Supreme Court of Ohio shall begin to run upon the journalization of this court's announcement of decision by the clerk per App.R. 22(E). See, also, S.Ct.Prac.R. II, Section 2(A)(1). APPENDIX ASSIGNMENTS OF ERROR 1. H.B. 180, AS APPLIED TO APPELLANT, VIOLATES ART. I, SEC. 10, OF THE UNITED STATES CONSTITUTION AS EX POST FACTO LEGISLATION. 2. THE SEXUAL PREDATOR HEARING IN THE CASE AT BAR VIOLATED APPELLANT'S DUE PROCESS RIGHTS, GUARANTEED BY THE UNITED STATES AND OHIO CONSTITUTIONS, WHEN THE HEARING FAILED TO COMPORT WITH THE MANDATES OF H.B. 180 WHICH INCLUDE WITNESSES, EVIDENCE, AND THE RIGHT TO CROSS-EXAMINE THE EVIDENCE AGAINST APPELLANT. 3. 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. 4. THE APPLICATION OF H.B. 180 IN THE CASE AT BAR VIOLATES THE EQUAL PROTECTION CLAUSE OF THE FOURTEENTH AMENDMENT OF THE UNITED STATES CONSTITUTION. 5. THE APPLICATION OF THE CLEAR AND CONVINCING EVIDENCE STANDARD IN APPELLANT'S H.B. 180 HEARING VIOLATES EQUAL PROTECTION, GUARANTEED BY THE FOURTEENTH AMENDMENT OF THE UNITED STATES CONSTITUTION, AND DUE PROCESS, GUARANTEED BY THE FIFTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION. 6. H.B. 180 IS VOID FOR VAGUENESS SINCE IT COMPELS A COURT TO MAKE A PREPONDERANCE DETERMINATION BASED UPON CLEAR AND CONVINCING EVIDENCE. 7. H.B. 180 IS AN UNCONSTITUTIONAL BILL OF ATTAINDER. 8. H.B. 180, AS APPLIED TO APPELLANT, CONSTITUTES DOUBLE JEOPARDY, IN VIOLATION OF THE FIFTH AMENDMENT OF THE UNITED STATES CONSTITUTION AND ART. 1, SEC. 10 OF THE OHIO CONSTITUTION. 9. THE PUBLIC NOTIFICATION PROVISIONS OF H.B. 180, AS APPLIED TO APPELLANT, VIOLATE APPELLANT'S CONSTITUTIONAL RIGHT TO PRIVACY. 10. H.B. 180, WITH ITS LEGISLATED STIGMA OF PUBLIC NOTIFICATION, CONSTITUTES CRUEL AND UNUSUAL PUNISHMENT, IN VIOLATION OF THE EIGHTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. I, SEC. 9 OF THE OHIO CONSTITUTION. 11. APPLICATION OF H.B. 180 TO APPELLANT, WHO PLED GUILTY TO AN OFFENSE PRIOR TO THE EFFECTIVE DATE OF THIS LEGISLATION, VIOLATED APPELLANT'S DUE PROCESS RIGHTS AND CRIM.R. 11, SINCE HE COULD NOT HAVE BEEN INFORMED OF THE REGISTRATION/NOTIFICATION CONSEQUENCES OF HIS PLEA AT THE TIME OF HIS PLEA. 12. THE TRIAL COURT ERRED IN IMPOSING REGISTRATION REQUIREMENTS UPON APPELLANT, SINCE APPELLANT WAS SENTENCED PRIOR TO THE EFFECTIVE DATE OF R.C. .