COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 78585 STATE OF OHIO : : Plaintiff-Appellee : : JOURNAL ENTRY -vs- : AND : OPINION GEORGE MOSES : : Defendant-Appellant : DATE OF ANNOUNCEMENT OF DECISION: JULY 5, 2001 CHARACTER OF PROCEEDING: CRIMINAL APPEALS FROM COURT OF COMMON PLEAS CASE NO. CR-203785 JUDGMENT: AFFIRMED DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellee: WILLIAM D. MASON Cuyahoga County Prosecutor LEO GORIE (#0000835) 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 JUDGE TERRENCE O'DONNELL: George Moses appeals from a judgment of the common pleas court -2- classifying him as a sexual predator. On appeal, Moses contends that the trial court should have provided funds for the appointment of an expert witness. Moses further claims that the state failed to present clear and convincing evidence that he is likely to engage in the future in one or more sexually oriented offenses, and he also challenges the constitutionality of Ohio's sexual predator law. After careful review of the record, we affirm the judgment of the trial court to classify Moses as a sexual predator. The record before us reveals that, on November 12, 1985, the grand jury indicted Moses for the rape of a five-year-old boy. In accordance with a plea agreement, Moses pled guilty to an amended charge of attempted rape, and on July 29, 1986, the court sentenced him to a prison term of four to fifteen years. Effective January 1, 1997, the legislature enacted H.B. 180, Ohio's sexual predator law, and pursuant to R.C. 2950.09(C), the court scheduled a sexual predator determination hearing. On July 24, 2000, Moses filed a motion to dismiss the H.B. 180 proceedings, challenging the constitutionality of R.C. Chapter 2950. He also filed a motion requesting funds for an expert witness. The trial court denied these motions, and conducted a sexual predator determination hearing on August 3, 2000. On August 15, 2000, the trial court found Moses to be a sexual predator. Moses now appeals, and presents four assignments of error for our consideration. The first one states: I. 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 -3- OFFENSES. Moses claims that the state failed to present sufficient evidence that he is likely to engage in the future in one or more sexually oriented offenses. Moses points out that, pursuant to R.C. 2950.09(B)(3), the state must prove this by clear and convincing evidence. Under R.C. 2950.09(B)(2), a trial court should consider the following factors when making a sexual predator determination: (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 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 -4- 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. After reviewing all testimony and evidence presented at the sexual predator hearing and the factors specified in division (B)(2) of this section, the judge shall determine by clear and convincing evidence whether the offender is a sexual predator. R.C. 2950.09(C)(2)(b). An appellate court will review this determination under a manifest weight standard. See State v. Perry (Nov. 16, 2000), Cuyahoga App. No. 77724, unreported, citing State v. Cook (1998), 83 Ohio St.3d 404. Recently, in State v. Eppinger (2001), 91 Ohio St.3d 157, 158, the court adopted the following model procedure for sexual offender classification hearings: In a model sexual offender classification hearing, there are essentially three objectives. First, it is critical that a record be created for review. Therefore, the prosecutor and defense counsel should identify on the record those portions of the trial transcript, victim impact statements, presentence 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 issue of whether the offender is likely to engage in the future in one or more sexually oriented offenses. If the conviction is old, as in this case, the state may need to -5- introduce a portion of the actual trial record; if the case was recently tried, the same trial court may not need to actually review the record. In either case, a clear and accurate record of what evidence or testimony was considered should be preserved, including any exhibits, for purposes of any potential appeal. Second, an expert may be required, as discussed above, to assist the trial court in determining whether the offender is likely to engage in the future in one or more sexually oriented offenses. Therefore, either side should be allowed to present expert opinion by testimony or written report to assist the trial court in its determination, especially when there is little information available beyond the conviction itself. While providing an expert at state expense is within the discretion of the trial court, the lack of other criteria to assist in predicting the future behavior of the offender weighs heavily in favor of granting such a request. Finally, the trial court should consider the statutory factors listed in R.C. 2950.09(B)(2), and should discuss on the record the particular evidence and factors upon which it relies in making its determination regarding the likelihood of recidivism. See State v. Thompson, supra. See, also, State v. Russell, 1999 Ohio App. LEXIS 1579 (Apr. 8, 1999), Cuyahoga App. No. 73237, unreported, 1999 WL 195657; State v. Casper, 1999 Ohio App. LEXIS 2617 (June 10, 1999), Cuyahoga App. Nos. 73061, 73064, 73062 and 73063, unreported, 1999 WL 380437. During Moses' sexual predator hearing, the state addressed the factors listed in R.C. 2950.09(B)(2), and then presented the police report from the underlying offense and a psychological report prepared by two psychological professionals for the department of rehabilitation and correction in 1995. These exhibits detailed the underlying sexually oriented offense, during which Moses forced a five-year-old boy to perform oral sex on him. In addition, the -6- psychological report reveals the following: Inmate Moses reports that this is his first incarceration. He acknowledged having a juvenile record. He reports that he was placed in a reform school when his mother sought psychological help for him following an incident in which he was violently raped by three older boys when he was fourteen. In addition to the rape at age fourteen, Mr. Moses reports being molested repeatedly beginning at the age of four by numerous men. He cites the perpetrators as the mailman, a fifth grade school teacher, and a number of male family friends. * * * * * * Mr. Moses reports having been placed on probation three times for indecent exposure. In addition, Mr. Moses reports that he sexually molested his first wife's daughter from the time she was four until she was six or seven. * * * * * * He also reports having completed all but the last two sections of the Polaris Sex Offender Program before being dismissed because a therapist thought that he was sexualizing the staff. He claims that he gave his opinion of women and soon was taken out of the program. Mr. Moses' Discharge Summary states that he was dismissed due to a lack of progress. * * * * * * Mr. Moses openly acknowledges his proclivity to exhibitionistic behavior, describing it as an addiction and claiming to have this addiction under control. Although Mr. Moses admits to having sexually abused two children, he appears unwilling or unable to therapeutically address his Pedophilic behavior and the personality dynamics which are contributing factors. Therefore, Mr. Moses remains at risk to reoffend particularly during times of high stress. -7- Moses' criminal and social history, together with a professional prediction that he remains at risk to reoffend, are strong indicators that he is likely to engage in future sexually oriented offenses. Based on the foregoing, we have concluded that the record presented to this court contains sufficient evidence to support the trial court's sexual predator determination in this case. Accordingly, we overrule this assignment of error. II. WHETHER APPELLANT WAS DENIED DUE PROCESS OF LAW WHEN THE TRIAL COURT DENIED APPELLANT'S MOTION FOR A PSYCHOLOGICAL EVALUATION BY AN EXPERT IN VIOLATION OF R.C. S2950.09(B)(1) AND THE FIFTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION AND ARTICLE 1, SECTION 10 TO THE OHIO CONSTITUTION. Moses maintains that he had a due process right to state- funded expert assistance, and therefore, that the trial court erred in denying his motion for a psychological or psychiatric expert at state expense. Following the trial court's decision in this case, and while the matter remained pending in our court, the Supreme Court of Ohio released State v. Eppinger (2000), 91 Ohio St.3d 158. The syllabus of this case states: An expert witness shall be provided to an indigent defendant at an R.C. 2950.09(B)(1) sexual offender classification hearing if the court determines, within its sound discretion, that such services are reasonably necessary to determine whether the offender is likely to engage in the future in one or more sexually oriented offenses within the meaning of R.C. 2950.01(E). The Ep pinger court further explained at page 162 of its opinion: -8- In some instances, offenders will have several sexually oriented convictions, or will clearly fit a variety of the factors listed in R.C. 2950.09(B)(2)(a) through (j). An offender who preys on children, for example, may fit the pedophile profile, a class of sex offenders known for their especially high rate of recidivism. There may be sufficient evidence in the transcripts, victim impact statements, presentence investigation reports, prior history of arrests and convictions, age, etc., presented at the sexual offender classification hearing with respect to the R.C. 2950.09(B)(2) factors as they relate to the likelihood of reoffending. In those situations, appointment of an expert for an indigent offender may be unwarranted. But a person who has been convicted of or who has pled guilty to committing one sexually oriented offense is not necessarily likely to engage in the future in one or more sexually oriented offenses. One sexually oriented offense is not a clear predictor of whether that person is likely to engage in the future in one or more sexually oriented offenses, particularly if the offender is not a pedophile. Thus, we recognize that one sexually oriented conviction, without more, may not predict future behavior. Therefore, the appointment of an expert may be warranted to aid the trial court in determining the likelihood of recidivism. We disagree with the court of appeals that such an appointment is mandatory. Instead, we hold that an expert witness shall be provided to an indigent defendant at an R.C. 2950.09(B)(1) sexual offender classification hearing if the court determines, within its sound discretion, that such services are reasonably necessary to determine whether the offender is likely to engage in the future in one or more sexually oriented offenses within the meaning of R.C. 2950.01(E). (Emphasis added.) A careful reading of the above reveals that the predicate to appointment of a state-paid expert witness in a sexual predator -9- case is the exercise of the trial court's discretion to decide whether such services are reasonably necessary to determine whether the offender is likely to engage in future sexually oriented offenses. In this case, Moses admitted to the prison's psychologicalprofessionals that he molested at least two children -- in addition to the five-year-old boy, he admitted to molesting his first wife's four-year-old daughter until she was six or seven. He also conceded to having an addiction to exhibitionistic behavior. Under these circumstances, we believe that the court properly exercised its discretion when it found the appointment of an expert to be unwarranted, and therefore, we reject this assignment of error. 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 CLASSIFICATION SCHEME IS SYSTEMATICALLY FLAWED. In the third and fourth assignments of error, Moses raises two constitutional challenges to Ohio's sexual predator legislation. We have consistently overruled identical assignments of error. See, e.g., State v. Wilson (Oct. 26, 2000), Cuyahoga App. No. 77530, unreported; State v. Moore (Aug. 17, 2000), Cuyahoga App. No. 76830, unreported; State Gross (Aug. 17, 2000), Cuyahoga App. No. 76836, unreported. Accordingly, we summarily overrule these arguments. -10- Judgment affirmed. It is ordered that appellee recover of appellant its costs herein taxed. The court finds there were reasonable grounds for this appeal. The defendant's conviction having been affirmed, any bail pending appeal is terminated. Case remanded to the trial court for execution of sentence. It is ordered that a special mandate issue out of this court directing the Common Pleas Court to carry this judgment into -11- execution. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. PATRICIA A. BLACKMON, P.J. and JAMES J. SWEENEY, J. CONCUR TERRENCE O'DONNELL JUDGE N.B. This entry is an announcement of the court's decision. See App.R. 22(B), 22(D), 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). .