COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 77530 THE STATE OF OHIO : : Plaintiff-Appellee : : JOURNAL ENTRY -vs- : AND : OPINION WILLIE J. WILSON : : Defendant-Appellant : DATE OF ANNOUNCEMENT OF DECISION: OCTOBER 26, 2000 CHARACTER OF PROCEEDING: CRIMINAL APPEALS FROM COURT OF COMMON PLEAS CASE NO. CR-213015 JUDGMENT: AFFIRMED IN PART, REVERSED IN PART, VACATED AND REMANDED DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellee: WILLIAM D. MASON Cuyahoga County Prosecutor RENEE L. SNOW (#0068769) Assistant Pros. Attorney The Justice Center, 9TH Floor 1200 Ontario Street Cleveland, Ohio 44113 For Defendant-Appellant: JAMES A. DRAPER Cuyahoga Cty. Public Defender CARLOS WARNER (#0068736) Assistant Public Defender 1200 West Third Street N.W. 100 Lakeside Place Cleveland, Ohio 44113-1569 LEO M. SPELLACY, J.: Defendant-appellant Willie J. Wilson ( appellant ) appeals from the trial court's determination that he is a sexual -2- predator. For the following reasons, we reject the substantive challenges to R.C. Chapter 2950. However, we vacate the finding that appellant is a sexual predator and remand this case for further proceedings consistent with this opinion. On or about November 21, 1986, the grand jury issued a two- count indictment charging appellant with aggravated burglary and theft. The indictment included specifications based upon appellant's previous convictions for kidnapping, rape and aggravated robbery. The record also indicates that appellant had prior convictions for sexual battery and gross sexual imposition. At his arraignment on December 9, 1986, appellant entered a plea of not guilty. The underlying case proceeded to trial. After deliberation, the jury found appellant guilty of aggravated burglary and theft. The trial court also found appellant guilty of the specifications. In a journal entry filed on February 20, 1987, the court sentenced appellant to concurrent prison terms of fifteen to twenty-five years for aggravated burglary and one year for theft. This court sustained appellant's conviction in State v. Wilson (Feb. 25, 1988), Cuyahoga App. No. 53551, unreported. On November 16, 1999, the trial court conducted a sexual predator determination hearing. In a journal entry filed on December 20, 1999, the court found appellant to be a sexual predator. Therefrom, appellant filed a timely notice of appeal with this court. I. THE TRIAL COURT ERRED WHEN IT CONDUCTED A HEARING PURSUANT TO R.C. S2950.09(C) WHERE THE -3- OFFENSE THAT UNDERLIED THE APPELLANT'S CONVICTION WAS NOT SEXUALLY ORIENTED. In his first assignment of error, appellant insists that the trial court erred in conducting a sexual predator determination hearing pursuant to R.C. 2950.09(C)(1) because, at the time of the hearing, appellant was not serving a prison term for a sexually oriented offense. Although appellant had previously been convicted of various sexually oriented offenses, he received parole in 1985. At the time of the subject hearing, appellant was serving a term of imprisonment for aggravated burglary. R.C. 2950.09(C)(1) provides: If a person was convicted of or pleaded guilty to a sexually oriented offense prior to January 1, 1997, if the person was not sentenced for the offense on or after January 1, 1997, and if on or after January 1, 1997, the offender is serving a term of imprisonment in a state correctional institution, prior to the offender's release from the term of imprisonment,the department of rehabilitation and correction shall determine whether to recommend that the offender be adjudicated as being a sexual predator. * * * R.C. 2950.09(C)(1) applies to offenders who: (1) were convicted or entered a plea of guilty to a sexually oriented offense prior to January 1, 1997; (2) were sentenced for the sexually oriented offense prior to January 1, 1997; and (3) were serving a term of imprisonment in a state correctional facility on or after January 1, 1997. See State v. Gregory (Sept. 30, 1999), Cuyahoga App. No. 74859, unreported, citing State v. Striley (Dec. 29, 1997). Clermont App. No. CA97-05-046, unreported. Ohio courts have consistently rejected the argument that R.C. 2950.09(C)(1) requires that on or after January 1, 1997, the -4- offender is serving a term of imprisonment for a sexually oriented offense. See State v. Benson (Aug. 28, 2000), Butler App. No. CA- 99-11-194, unreported ( In no way do they [R.C. 2950.09(C)(1) and related statutes] impose a more restrictive condition that the term of imprisonment be for a sexually-oriented offense.); State v. Michaels (Dec. 8, 1999), Summit App. No. 18862, unreported ( The statute does not restrict the `term of imprisonment' to one being served for a sexual offense. ). Accord State v. Naugle (Aug. 30, 1999), Stark App. No. 1999CA00017, unreported; State v. Johnson (Sept. 24, 1998), Franklin App. Nos. 97APA12-1585, 97APA12-1589, unreported. As the Seventh Appellate District noted in State v. Berry (Dec. 13, 1999), Carroll App. No. 716, unreported: * * * A review of R.C. 2950.09(C)(1) unequivocally reveals that all which is required prior to a sexual predator determinationhearing is that "the offender is serving a term of imprisonment." Absolutely no reference is made that the imprisonment must arise as a result of a sexually oriented offense conviction. Had the legislature intended such a requirement it easily could have inserted such language in the statute. Due to the very fact that this type of restriction has not been included in the statute, this court is precluded from reading such into the statute as the statute is clear and unambiguous on its face. The meaning of the statute is unambiguous and definite; therefore, it must be applied as written and no further interpretation is appropriate. See generally Weiss Pub. Utilities Comm. of Ohio (2000), 90 Ohio St.3d 15. We adopt the logic of the above-cited cases. Based upon the foregoing, the first assignment -5- of error is overruled. II. 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. As for his second assignment of error, appellant asserts that the evidence presented at his hearing was insufficient to prove by clear and convincing evidence that he is a sexual predator. R.C. 2950.01(E) defines a "sexual predator" as "a person who has been convicted of or pleaded guilty to committing a sexually oriented offense and is likely to engage in the future in one or more sexually oriented offenses." (Emphasis added.) The first prong of R.C. 2950.01(E) was clearly satisfied in this case, viz., appellant had pleaded guilty to sexual battery in 1977. In addition, appellant had been convicted of kidnapping1, rape and gross sexual imposition in 1978. However, appellant maintains that there was insufficient evidence presented at the hearing to determine by clear and convincing evidence that he is likely to engage in the future in one or more sexually oriented offenses. In making a determination as to whether an offender is a sexual predator, the trial judge must consider all relevant factors, including, but not limited to the factors listed in R.C. 2950.09(B)(2): (a) The offender's age; (b) The offender's prior criminal record 1 Pursuant to R.C. 2950.01(D)(3), kidnapping is a sexually oriented offense where it is committed with a purpose to gratify the sexual needs or desires of the offender. -6- 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 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. The statute does not require the court to list the criteria, but only to `consider all relevant factors, including' the criteria in R.C. 2950.09(B)(2) in making his or her findings. State v. -7- Cook (1998), 83 Ohio St.3d 404, 426. Moreover, R.C. 2950.09(B)(2) does not require that each factor be met, rather it merely requires that the trial court consider those factors which are relevant. State v. Ivery (Feb. 18, 1999), Cuyahoga App. No. 72911, unreported, citing State v. Tracy (May 20, 1998), Summit App. No. 18623, unreported. The standard of "clear and convincing evidence" is the measure or degree of proof which is more than a mere preponderance of the evidence, but not to the extent of such certainty as is required beyond a reasonable doubt in criminal cases. State v. Schiebel (1990), 55 Ohio St.3d 71, 74. Clear and convincing evidence is the measure or degree of proof which produces in the mind of the trier of facts a firm belief or conviction as to the facts sought to be established. Id. In reviewing a trial court's decision based upon clear and convincing evidence, an appellate court must examine the record to determine whether sufficient evidence exists to satisfy the requisite degree of proof. Id. During the subject sexual predator hearing, the state presented bare allegations regarding appellant's prior sexually oriented offenses. In fact, the state acknowledged that one of the files had been destroyed. The state merely established that appellant committed two sexual assaults when he was a teenager. These crimes occurred over twenty-two years prior to appellant's sexual predator determination hearing. The state failed to present any exhibits or witnesses, on the record, to demonstrate that appellant is likely to engage in the future in one or more -8- sexually oriented offenses. R.C. Chapter 2950 requires that the State present the trial court with clear and convincing evidence that the offender is likely to engage in the future in one or more sexually oriented offenses. See R.C. 2950.01(E). See also State v. Hull (June 29, 2000), Cuyahoga App. No. 76460, unreported ( Standing alone, defendant's rape conviction is insufficient to support his sexual predator determination. ); State v. Gregory (September 30, 1999), Cuyahoga App. No. 74859, unreported ( [T]he state failed to provide any evidence beyond the bare facts of defendant-appellant's conviction to satisfy the second prong of the determination regarding the likelihood of future offenses. ); State v. Johnson (Sept. 30, 1999), Cuyahoga App. No. 74841, unreported ( During the hearing, the court was merely presented with the prosecutor's recitation of the fact of appellant's underlying conviction and the bare allegation that appellant had a prior sex conviction. ); State v. Wimberly (Aug. 12, 1999), Cuyahoga App. No. 74652, unreported ( No witnesses were presented at the hearing and no further evidence was taken relative to whether Wimberly was a risk to be a repeat offender in the arena of improper sexual relations with others. ). As this court noted in State v. Thompson (Apr. 1, 1999), Cuyahoga App. No. 73492, unreported: In a model sexual predator determination hearing, the prosecutor and defense counsel would take care to identify on the record those portions of the trial transcript, victim -9- impact statements, pre-sentence report and other pertinent aspects of the defendant's criminal and social history that both relate to the factors set forth in R.C. 2950.09(B)(2) and are probative of the second prong of R.C. 2950.01(E). Either side might present expert opinion by testimony or written report to assist the trial court in its determination when there is little information beyond the fact of the conviction itself. The trial court not only would then consider on the record the statutory factors themselves, but in addition would discuss in some detail the particular evidence and factors upon which it relies in making its determination. Finally, it would include evidentiary materials in the record for purposes of any potential appeal. Appellant also insists that res judicata precludes this court from remanding this case to the trial court for another sexual predator determination hearing. This court has consistently remanded sexual predator cases for additional consideration. See State v. Ward (1999), 130 Ohio App. 3d 551, 563 (reversing a sexual predator determination and remanding the case to the trial court for further consideration of the record in toto); ad nauseam. Based upon the foregoing, we reverse the judgment of the trial court and vacate the order adjudicating appellant to be a sexual predator. This case is remanded to the trial court with instructions to conduct a sexual predator determination hearing consistent with R.C. Chapter 2950 and this opinion. III. OHIO'S SEXUAL PREDATOR STATUTE VIOLATES THE CONCEPTS OF SEPARATION OF POWERS BECAUSE IT FORCES A TRIAL COURT TO INVESTIGATE, PROSECUTE AND ADJUDICATE INDIVIDUALS AS SEXUAL PREDATORS. IV. THE ADJUDICATION PROVISIONS VIOLATE THE DUE PROCESS CLAUSES OF THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ARTICLE I OF THE OHIO CONSTITUTION, BECAUSE OHIO'S -10- CLASSIFICATION SCHEME IS SYSTEMATICALLY FLAWED. In his third and fourth assignments of error, appellant raises constitutional challenges to R.C. Chapter 2950. Ohio courts have consistently rejected every conceivable attack on the constitutionality of the sexual predator law. See State v. Williams (2000), 88 Ohio St.3d 513; State v. Cook (1998), 83 Ohio St.3d 404; State v. Ward (1999), 130 Ohio App. 3d 551; ad nauseam. In fact, this court has recently overruled identical assignments of error. See State v. Moore (Aug. 17, 2000), Cuyahoga App. No. 76830, unreported; State v. Gross (Aug. 17, 2000), Cuyahoga App. No. 76836, unreported. Based upon the foregoing, we summarily overrule appellant's third and fourth assignments of error. The judgment of the trial court is affirmed in part and reversed in part. This case is remanded to the trial court for further proceedings consistent with this opinion. It is ordered that appellant recover of appellee his 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. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. -11- JOHN T. PATTON, P.J. and MICHAEL J. CORRIGAN, J. CONCUR. LEO M. SPELLACY 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). .