COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 77944 STATE OF OHIO, : : Plaintiff-Appellee : JOURNAL ENTRY : and vs. : OPINION : RUSSELL MELTON, : : Defendant-Appellant : DATE OF ANNOUNCEMENT OF DECISION : MARCH 22, 2001 CHARACTER OF PROCEEDING: : Criminal appeal from : Common Pleas Court : Case No. CR-059154 JUDGMENT : AFFIRMED. DATE OF JOURNALIZATION : APPEARANCES: For plaintiff-appellee: William D. Mason, Esq. Cuyahoga County Prosecutor BY: Fernando Mack, Esq. Assistant County Prosecutor The Justice Center 8th Floor 1200 Ontario Street Cleveland, Ohio 44113 For defendant-appellant: Daniel M. Margolis, Esq. MICHAEL J. GOLDBERG & ASSOCIATES 323 Lakeside Avenue, Suite 450 Cleveland, Ohio 44113 -2- MICHAEL J. CORRIGAN, P.J.: In 1980, a jury convicted defendant Russell Melton of kidnapping, rape and felonious assault. In January 2000, the state asked the court to classify defendant as a sexual predator. Following the hearing, the court determined that the state failed to present clear and convincing evidence that defendant was likely to commit a sexually oriented offense in the future, so it refused to classify defendant as a sexual predator. Instead, the court referred to another conviction for gross sexual imposition and classified defendant as a habitual sexual offender. The sole issue in this appeal is whether the court erred by permitting the state to read into the record verbatim portions of the victim's statement in the underlying criminal case. A court considering whether to classify an offender as a sexual predator may use reliable hearsay such as a presentence investigation report or victim impact statements because the Ohio Rules of Evidence do not strictly apply to sexual predator adjudication hearings. In State v. Cook (1998), 83 Ohio St.3d 404, 425, the Supreme Court stated: Evid.R. 101(C) excepts application of the Rules of Evidence, including the hearsay rule, from certain proceedings, such as miscellaneous criminal proceedings. Among those listed as specifically excepted from the Rules of Evidence are proceedings for extradition or rendition of fugitives; sentencing; granting or revoking probation; issuance of warrants for arrest, criminal summonses, and search warrants; and proceedings with respect to bail or otherwise. Evid.R. 101(C). A sexual predator determinationhearing is similar to sentencing or probation hearings where it is well settled -3- that the Rules of Evidence do not strictly apply. A determination hearing does not occur until after the offender has been convicted of the underlying offense. Further, the determinationhearing is intended to determine the offender's status, not to determine the guilt or innocence of the offender. Accordingly, we hold the Ohio Rules of Evidence do not strictly apply to sexual predator hearings. The courts of appeals have consistently viewed victim statements as admissible in sexual predator hearings. See State v. Parker (Nov. 19, 1999), Columbiana App. No. 98-CO-76, unreported; State v. Warner (Apr. 20, 1998), Butler App. No. CA97-03-064, unreported (collecting cases). Under the circumstances, and given no objection by defendant, we find the court did not err by permitting the state to read into evidence portions of a victim's police statement. Even were we to find the court erred by permitting the state to read portions of a victim's statement, there would be no reversible error since the statement would have been superfluous to the court's classification of defendant as a habitual sexual offender. R.C. 2950.01(B) defines a habitual sexual offender as a person who is convicted of or pleads guilty to a sexually oriented offense and who previously has been convicted of or plead guilty to one or more sexually oriented offenses. This is a mandatory classification for offenders who (1) were convicted of or pleaded guilty to a sexually oriented offense and (2) have a previous conviction for one or more sexually oriented offenses. A habitual sexual offender classification therefore requires no -4- consideration of those factors used to determine whether an offender is a sexual predator. Our interpretation that the habitual sexual offender classification is mandatory in this case is supported by the language of R.C. 2950.09(C)(2)(b)(ii) which, as applicable to persons like defendant who were convicted of a sexually oriented offense prior to January 1, 1997, but not sentenced after January 1, 1997, states in relevant part: (ii) If the hearing is to determine whether the offender is a sexual predator, and if the court determines that the offender is not a sexual predator but that the offender previously has been convicted of or pleaded guilty to a sexually oriented offense other than the offense in relation to which the hearing is being conducted, it shall include its determination that the offender is not a sexual predator but is a habitual sex offender in the offender's institutional record. *** (Emphasis added.) The use of the word shall in a legislative provision indicates that the provision will generally be construed as mandatory. See Dorrian v. Scioto Conservancy Dist. (1971), 27 Ohio St.2d 102, paragraph one of the syllabus. It is uncontested that defendant was convicted of rape and had a previous conviction for gross sexual imposition. A recitation of the victim's police statement did not change this fact. Under the circumstances, a reading of the police statement could not have prejudiced defendant in any way since the court had the obligation, regardless of the particular facts of the case, to find defendant a habitual sexual offender. The assigned error is overruled. Judgment affirmed. -5- 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. MICHAEL J. CORRIGAN PRESIDING JUDGE BLACKMON, J., and DYKE, J., CONCUR. 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. 27. 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). .