State v. Shahan

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[Cite as State v. Shahan, 2003-Ohio-6945.] IN THE COURT OF APPEALS OF OHIO FOURTH APPELLATE DISTRICT WASHINGTON COUNTY STATE OF OHIO, : : Plaintiff-Appellee, : Case No. 02CA63 : v. : : DECISION AND JUDGMENT ENTRY DENNIS SHAHAN, SR., : : Defendant-Appellant. : Released 12/10/03 : ___________________________________________________________ APPEARANCES: David H. Bodiker, State Public Defender, John Bay, Assistant Public Defender, Columbus, Ohio, for appellant. Michael G. Spahr, Washington County Prosecuting Attorney, Alison L. Cauthorn, Assistant Prosecuting Attorney, Marietta, Ohio, for appellee. ___________________________________________________________ Harsha, J. {¶1} imposition Dennis Shahan appeals his conviction for gross sexual contends and the his classification court erred in as a sexual admitting predator. hearsay He evidence concerning additional allegations of sexual abuse at his sexual predator determination hearing. He claims that admission of the evidence violated his constitutional rights to confrontation of witnesses and due process of law. Because the confrontation clause does not apply to sexual predator determination hearings, 2 Washington App. No. 02CA63 admission of the evidence did not violate constitutional right to confrontation of witnesses. Shahan s Moreover, admission of the hearsay evidence did not violate Shahan s due process rights because he had an opportunity to challenge the evidence by presenting evidence of his own. Shahan also contends the court s sexual predator determination is against the manifest weight of the evidence. We conclude there is competent, credible evidence to support the trial court s sexual predator determination. Finally, Shahan contends he received ineffective assistance of counsel during both his trial and his sexual predator instances counsel. of determination deficient hearing. conduct on the He points part of his to four defense Having reviewed the record, we conclude Shahan has not established that he received ineffective assistance of counsel. Thus, we affirm the judgment of the trial court. {¶2} Shahan met Etta Johnston in 1994. At the time, Mrs. Johnston had two daughters, Lori B. (DOB 4/25/92) and Claudia B. (DOB 1/17/94). Although Shahan and Mrs. Johnston only dated for a remained year, they relationship ended. close Often, friends Shahan after would Claudia while Mrs. Johnston was at work. their care for romantic Lori and According to Shahan, he helped raise Mrs. Johnston s daughters. {¶3} daughter. Eventually, Mrs. Johnston married and had another Even after Mrs. Johnston s marriage, Shahan remained 3 Washington App. No. 02CA63 good friends with her and her family. Once every month or two, Shahan would watch Mrs. Johnston s three daughters overnight so she could spend time alone with her husband. {¶4} Lori no During the summer of 2001, Mrs. Johnston noticed that longer wanted to go to Shahan s house. When Mrs. Johnston questioned her about it, Lori told her mother that on a previous overnight visit to Shahan s house, he had touched her vaginal area.1 According to Lori, she and her sisters had been sitting on a mattress watching Tarzan when Shahan picked her up and placed her on the couch. He proceeded to place his hand inside her underwear and touch her vagina, stopping only when she moved to the other side of the couch. her two sisters, Shahan s girlfriend, Lori indicated that and the girlfriend s granddaughter were in the room when this occurred. She also indicated that Shahan made her sleep in his bed between him and his girlfriend that night, although he did not attempt to touch her. {¶5} After learning of the incident, Mrs. Johnston contacted Washington County Children s Services, who interviewed Lori and notified the Washington County Sheriff s Department. Detective Warden of the Sheriff s Department then spoke with Lori 1 and her mother. Based on that conversation, According to the evidence presented at trial, this overnight visit occurred during the summer of 2000. Detective 4 Washington App. No. 02CA63 Warden questioned allegation. Shahan. Initially, Shahan denied the Eventually, however, he admitted that he might have touched Lori s bare vagina. He also admitted that touching Lori was probably doing something for him. He then clarified that statement by indicating that he was enjoying it . {¶6} count In March 2002, the grand jury indicted Shahan on one of gross 2907.05(A)(4). Mrs. sexual imposition in violation of R.C. At trial, the state presented testimony from Johnston, Lori, and Detective Warden. The state also played the tape of Detective Warden s interview with Shahan. his defense, Shahan girlfriend and his son. offered the testimony of his In former Both witnesses testified that they were present on the night in question and that they did not see any improper conduct on Shahan s part. own defense, claiming that he Shahan also testified in his had never touched Lori. He claimed that Detective Warden had tricked him into admitting he had touched Lori even though it was not true. {¶7} gross After a one-day trial, the jury found Shahan guilty of sexual sentencing imposition. and sexual The court predator then held a determination combined hearing. Ultimately, the court sentenced Shahan to three years in prison and designated raising the him a following sexual predator. assignments of Shahan error: now appeals, "Assignment of Error No. 1: Dennis Shahan was denied due process of law and his 5 Washington App. No. 02CA63 confrontational rights at the sexual predator hearing due to the trial court's reliance upon police detective testimony regarding written statements by alleged victims of Mr. Shahan's abuse, and the admittance of those statements into requiring the alleged victims to testify. evidence, without Fifth and Fourteenth Amendments to the United States Constitution and Section 16, Article I of the Ohio Constitution. Assignment of Error No. 2: Mr. Shahan's right to due process was denied when the trial court adjudicated him as a sexual predator, when that finding was against Fourteenth the manifest Amendments to weight the of United the evidence. and Constitution States Fifth and Section 16, Article I of the Ohio Constitution. Assignment of Error No. 3: Dennis Shahan's right to the effective assistance of counsel was violated. Constitution and Sixth Amendment to the United States Section 10, Article I of the Ohio Constitution." {¶8} In his first assignment of error, Shahan contends the court erred in admitting hearsay evidence concerning additional allegations of sexual abuse at his sexual predator determination hearing. He contends admission of the evidence violated his constitutional rights to confrontation of witnesses and due process of law. {¶9} Because Shahan s counsel did not object to admission of the hearsay statements at the sexual predator hearing, we 6 Washington App. No. 02CA63 review this assignment of error under a plain error analysis. See Crim.R. 52(B). An appellate court will take notice of plain error with utmost caution, under exceptional circumstances, and only to prevent a manifest miscarriage of justice. State v. Long (1978), 53 Ohio St.2d 91, 372 N.E.2d 804, paragraph three of the syllabus. Plain error does not exist unless it can be said that, but for the error, the outcome of the trial clearly would have been otherwise. State v. Biros, 78 Ohio St.3d 426, 1997-Ohio-204, 678 N.E.2d 891. {¶10} During the sexual predator determination hearing, the state presented the testimony of Detective Warden. Detective Warden testified that while investigating the present case, he learned of two other victims of sexual abuse - Shahan s daughter and niece. obtained He testified that he spoke with both women and written experienced. him regarding statements detailing the sexual abuse they He also testified about what the women had told the sexual abuse. During Detective Warden s testimony, the state offered the women s written statements into evidence. Shahan contends admitting the written statements into evidence and allowing Detective Warden to testify about the additional allegations violated his constitutional confrontation of witnesses and due process of law.2 2 rights to He argues The pre-sentence investigation report also contains information regarding the other sexual abuse allegations. Shahan s brief, however, does not mention the pre-sentence investigation report. Rather, his 7 Washington App. No. 02CA63 the court should have required his daughter and niece to testify in person so that he could cross-examine them. {¶11} Sexual nature. predator determination hearings are civil in State v. Cook, 83 Ohio St.3d 404, 422, 1998-Ohio-291, 700 N.E.2d 570. Because the Confrontation Clauses of the U.S. and Ohio Constitutions apply only to criminal matters, they do not apply to sexual predator determination hearings. State v. Hayden, 96 Ohio St.3d 211, 2002-Ohio-4169, 773 N.E.2d 502, at ¶4. Thus, admission of the hearsay evidence did not violate Shahan s constitutional right to confrontation of witnesses. {¶12} The basic tenets of procedural due process are notice and an opportunity to be heard. ¶6. Hayden, 96 Ohio St.3d at 212, R.C. 2950.09(B)(1) sets forth the procedural requirements for a sexual predator determination hearing. According to R.C. 2950.09(B)(1), * * *the offender * * * and the prosecutor shall have an opportunity to testify, present evidence, call and examine witnesses and expert witness, and cross-examine witnesses and expert witnesses regarding the determination as to whether the offender * * * is a sexual predator. {¶13} Moreover, the Rules of Evidence do not strictly apply to sexual predator determination hearings. State v. Cook, 83 Ohio St.3d 404, 425, 1998-Ohio-291, 700 N.E.2d 570. argument is directed towards the victims' written statements and Detective Warden s testimony. In Cook, 8 Washington App. No. 02CA63 the Supreme Court of Ohio held that a court may rely on reliable hearsay, such as a presentence investigation report, when making its sexual predator determination. Id. Shahan acknowledges Cook s holding that a court may rely on reliable hearsay when making its sexual predator determination. He also acknowledges that evidence of uncharged sexual assaults is admissible at a sexual predator 2000), hearing. Washington existence of App. other See No. victims of State v. 99CA36 McElfresh (July 14, that the relevant when (recognizing sexual abuse is determining whether an offender should be classified as a sexual predator). See, also, State v. Jones, Belmont App. No. 02 BE 36, 2003-Ohio-1219, at ¶24; State v. Burgess (July 10, 2000), Fayette App. No. CA99-08-021. However, he contends the court should have required his daughter and niece to testify at the hearing so that he could cross-examine them. presence at the hearing was necessary to He contends their aid the court in inapplicable to testing the veracity of their allegations. {¶14} Because sexual required predator to call the Confrontation determination Shahan s Clause hearings, daughter and is the niece state as was not witnesses. Moreover, because the court may rely on reliable hearsay, it is not per se prejudicial error for a trial court to base its determination upon evidence which could not be cross-examined . State v. Bailey (July 15, 1999), Franklin App. No. 98AP-1132. 9 Washington App. No. 02CA63 Shahan had the reliability of opportunity the hearsay evidence and witnesses. to challenge evidence by the accuracy presenting and his See Cook, 83 Ohio St.3d at 426. own See, also, State v. Brown, 151 Ohio App.3d 36, 2002-Ohio-5207, 783 N.E.2d 5391, at ¶30, quoting Bailey, supra. However, Shahan did not take advantage of that opportunity. could have subpoenaed his daughter purposes of cross-examination. and In addition, Shahan niece to testify for We find it quite significant that Shahan was aware at trial, far before the sexual predator determination allegations. hearing, that the state knew of the other Thus, he could have foreseen that the state would present evidence of the other allegations. Also important to our decision is the fact that the court continued the sexual predator hearing after the state presented its evidence. Thus, even if Shahan could not have foreseen that the state would present evidence of the other allegations, he had ample time after the evidence was presented to subpoena his daughter and niece and/or prepare a response to the state s evidence. Clearly, we are not dealing with a situation where the defendant is left with little or no means to address a "bolt from the blue." {¶15} In Williams v. New York (1949), 337 U.S. 241, 69 S.Ct. 1079, 93 L.Ed. 1337, the United States Supreme Court addressed a similar argument in the context of sentencing. In Williams, the 10 Washington App. No. 02CA63 trial court chose to impose a death sentence despite the jury s recommendation of life imprisonment. In giving the reasons behind its sentence, the court relied, in part, on the presentence investigation report. The court noted that Williams had been involved in thirty other burglaries near the area of the murder. Although he had not been convicted of these burglaries, Williams had confessed to some and been identified as the perpetrator of others. sentence investigation The court noted that the pre- report revealed Williams had been involved in certain activities that indicated he possessed a morbid sexuality . {¶16} At the time the court sentenced Williams, a New York statute required sentencing courts to consider the defendant s previous criminal psychiatric, or record mental along with examinations See Williams, 337 U.S. 243. reports before of any imposing mental, sentence. It also permitted the court to seek any information that will aid the court in determining the proper treatment of such defendant. Id. On appeal, Williams challenged the constitutionality of the statute. He argued that the statute violated his due process rights because it allowed the court to consider information from witnesses whom he had not had an opportunity to confront or cross-examine. Id. The United States Supreme Court rejected this argument, concluding that the due process clause does not prohibit a judge from 11 Washington App. No. 02CA63 relying on additional out-of-court information to assist him in imposing sentence. Id. at 252. The Court noted the difference between a trial, which is confined to the narrow issue of guilt, and sentencing, which attempts to determine an appropriate sentence after the issue of guilt has been determined. 247. Id. at The Court recognized that * * * possession of the fullest information possible characteristics sentence. is concerning essential to the defendant s selection of life an and appropriate The Court also recognized that if a judge could Id. only consider information presented in open court by witnesses subject to cross-examination, then most of the information judges rely upon to determine an appropriate sentence would be unavailable. open court Id. at 249. testimony The court determined that requiring with cross-examination on every issue relevant to sentencing would be impractical as it would create endless delay and result in retrial of collateral issues. {¶17} In Williams discussing Court stated: the "The federal due-process considerations we Id. clause, have the set out admonish us against treating the due-process clause as a uniform command that courts throughout the Nation abandon their age-old practice guide of their seeking information judgment toward a from more out-of-court enlightened sources and to just sentence. * * * The due-process clause should not be treated as a device for freezing the evidential procedure of sentencing in 12 Washington App. No. 02CA63 the mold of trial procedure. So to treat the due-process clause would hinder if not preclude all courts state and federal from making progressive efforts to improve the administration of criminal justice." Williams, 337 U.S. at 250-51. discussion instructive in the current case. We find this When determining that the Rules of Evidence did not strictly apply in sexual predator determination hearings, the Supreme Court of Ohio likened sexual predator determination hearings to sentencing or probation hearings. Evid.R. 101(C)(3). sexual predator Cook, 83 Ohio St.3d at 425. See, also, The court recognized that the purpose of a determination hearing is to offender s status, not his guilt or innocence. determine an Id. {¶18} Having considered Shahan s argument, we conclude the court did not violate Shahan s due process rights by admitting the hearsay evidence. See, generally, State v. Bass, Champaign App. No. 2001-CA-26, 2003-Ohio-1031 (finding the court, at the sexual predator determination hearing, properly considered affidavits from two juveniles who claimed defendant had made sexual advances towards them on a prior occasion.) The Ohio Supreme Court s decision in Cook, supra, permits the court to consider reliable hearsay evidence when making its sexual predator determination. Moreover, Shahan had an opportunity to challenge not the evidence subject to presenting his own evidence and witnesses. cross-examination by Because we find no 13 Washington App. No. 02CA63 error in regarding the other court s decision allegations of to admit sexual hearsay abuse, evidence Shahan s first assignment of error is overruled. {¶19} In his second assignment of error, Shahan contends the court s sexual predator determination is against the manifest weight of the evidence. {¶20} A sexual predator is a person who has been convicted of, or pled guilty to, committing a sexually oriented offense and is likely to engage in the future in one or more sexually oriented offenses. R.C. 2950.01(E); State v. Eppinger, 91 Ohio St.3d 158, 163, 2001-Ohio-247, 743 N.E.2d 881. Before a court may adjudicate an offender as a sexual predator, it must find each of evidence. these elements established R.C. 2950.09(B)(3). by clear and convincing Clear and convincing evidence is evidence that will provide in the mind of the trier of fact a firm belief established. or conviction as to the facts sought to be See Cincinnati Bar Ass'n. v. Massengale (1991), 58 Ohio St.3d 121, 122, 568 N.E.2d 1222. It is considered a higher degree of proof than a mere preponderance of the evidence , the standard generally utilized in civil cases; however, it is less stringent than the beyond a reasonable doubt standard used in criminal trials. See State v. Schiebel (1990), 55 Ohio St.3d 71, 74, 564 N.E.2d 54, quoting Cross v. Ledford (1954), 161 Ohio St. 469, 120 N.E.2d 118, paragraph three of the syllabus. 14 Washington App. No. 02CA63 {¶21} When reviewing whether clear and convincing evidence supports the trial court s decision, we must examine the record and ascertain whether enough evidence exists to meet this burden of proof. See In re Adoption of Holcomb (1985), 18 Ohio St.3d 361, 481 368, N.E.2d 613. This deferential to the trial court. type of review is still We will not overturn a trial court s judgment as being against the manifest weight of the evidence if the record contains competent, credible evidence to support it. Schiebel, supra; Seasons Coal Co. v. Cleveland (1984), 10 Ohio St.3d 77, 80, 461 N.E.2d 1273; C.E. Morris Co. v. Foley Constr. Co. (1978), 54 Ohio St.2d 279, 376 N.E.2d 578, syllabus. {¶22} Because the jury convicted Shahan of gross sexual imposition, he meets the first prong of the sexual predator definition. Shahan, however, challenges the court s finding that he is likely to commit a future sexually oriented offense, the second prong of the sexual predator definition. {¶23} When classified as determining a sexual whether predator, a an offender court must should be consider all relevant factors, including those listed in R.C. 2950.09(B)(2). Eppinger, 91 Ohio St.3d at 164. A trial court should discuss on the record the particular evidence and factors upon which it relies to support its decision that recidivism is likely. at 166-67. Id. However, a trial court is not required to express 15 Washington App. No. 02CA63 its reasoning or make explicit findings on all criteria listed in the statute. It need only consider and address the relevant factors. The R.C. offender s age; regarding (b) 2950.09(B)(2) The offenses, offenses; sexual all (c) offender s including, The factors age of prior but the are: "(a) criminal not The record limited victim to, of sexually the all 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 offense and, completed if the any prior sentence offense imposed was a sex for the offense prior 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, displayed cruelty or made one or more threats 16 Washington App. No. 02CA63 of cruelty; (j) Any additional behavioral characteristics that contribute to the offender s conduct." {¶24} A court is under no obligation to tally up the R.C. 2950.09(B)(2) factors in any fashion. State v. Mollohan (Aug. 19, 1999), Washington App. No. 98CA13. A court may classify an offender as a sexual predator even if only one or two statutory factors are present, so long as the totality of the relevant circumstances provides clear and convincing evidence that the offender is likely to commit a future sexually oriented offense. Id. {¶25} Having reviewed the record, we find there is substantial competent, credible evidence to support the court s sexual predator Shahan was report determination. indicates forty years that At old. he the The has time of presentence previous the offense, investigation adult convictions, although this is his first sexual offense conviction. While his previous convictions are not of a violent nature, they do show a disregard for the law. Washington App. No. See State v. McElfresh (July 14, 2000), 99CA36. For instance, Shahan has been convicted twice for driving while under DUI/OMVI suspension. {¶26} At the time of the sexual abuse, Lori was only eight years old. statistical recidivism We have evidence among sex previously recognized indicating the offenders whose the high crimes overwhelming potential for involve the 17 Washington App. No. 02CA63 exploitation of young children. Lori, Shahan took advantage McElfresh, supra. of his close In abusing relationship Lori s family and his position as Lori s babysitter. with See State v. Keerps, Washington App. No. 02CA2, 2002-Ohio-4806, at ¶15. Moreover, Shahan refuses to accept actions. See Mollohan, supra. responsibility for his In his statement to Detective Warden, Shahan attempted to blame Lori for the incident, stating that she was very flirtatious. Detective Warden, ended on Lori s into his up pressing Shahan When describing the incident to indicated crotch hand. but At that that his she trial, hand started despite might have rubbing his or previous statement admitting to the sexual abuse, Shahan denied having touched Lori. Instead, he claimed that Detective Warden had tricked him into confessing. {¶27} Furthermore, Shahan s daughter and niece both provided written statements indicating that Shahan sexually abused them when they were young. Shahan s daughter indicated that her father sexually abused her when she was twelve and his niece indicated that he sexually abused her when she was thirteen. In addition, the record indicates that Shahan has a serious alcohol problem that he refuses to acknowledge. See State v. Morris (July 18, 2000), Washington App. No. 99CA47. to Detective imbibes, he Warden, drinks Shahan anywhere indicated from that twelve In his statement normally beers to a when he case of 18 Washington App. No. 02CA63 beers. beer He further indicated that he can drink a twelve-pack of without catching a buzz. The record indicates that alcohol was a factor in the present incident as well as the incidents with Shahan s daughter and niece. At Shahan s sexual predator determination hearing, the defense presented testimony from Dr. J. recidivism. Michael Harding concerning Shahan s risk of On cross-examination, Dr. Harding testified that alcohol acts as a trigger for Shahan and increases his risk of re-offending. Finally, Dr. Harding s testimony establishes that Shahan s risk of recidivism is considerable . According to Dr. Harding, there is, at a minimum, a 45% chance that Shahan will re-offend within a ten-year period.3 {¶28} Based on the evidence in the record, we conclude the court did not err in classifying Shahan as a sexual predator as there is plenty of competent, credible evidence supporting the trial court s determination. Accordingly, Shahan s second assignment of error is overruled. {¶29} In his third assignment of error, Shahan contends he received ineffective assistance of counsel during both his trial and his sexual predator determination hearing. his argument, Shahan points to four instances In support of of counsel s deficient conduct. 3 Shahan s argument under this assignment of error takes issue with Dr. Harding s conclusion, arguing that there are inconsistencies in his 19 Washington App. No. 02CA63 {¶30} Reversal of a conviction for ineffective assistance of counsel requires that the defendant show, first, that counsel s performance was deficient, and, second, performance prejudiced the defense. that the deficient State v. Smith, 89 Ohio St.3d 323, 327, 2000-Ohio-166, 731 N.E.2d 645, citing Strickland v. Washington (1984), 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674; State v. Bradley (1989), 42 Ohio St.3d 136, 142, 538 N.E.2d 373. Defense counsel s representation must fall below an objective standard of reasonableness to be deficient in terms of ineffective assistance of counsel. the defendant must show that there Bradley. exists a Moreover, reasonable probability that, were it not for counsel s errors, the results of the trial would have been different. State v. White, 82 Ohio St.3d 16, 23, 1998-Ohio-363, 693 N.E.2d 772. If one component of the Strickland test disposes of an ineffective assistance of counsel claim, it is not necessary to address both components. Strickland; Bradley. {¶31} First, Shahan contends his counsel was ineffective for failing to object when the state cross-examined him during the trial about other allegations of sexual abuse. In addition, he claims counsel was ineffective for failing to request a limiting instruction at trial once the questioning occurred. He claims testimony. We have addressed this issue in Shahan s third assignment of error and find no inconsistencies in Dr. Harding s testimony. 20 Washington App. No. 02CA63 counsel s conduct prejudiced him because the court relied on the other allegations of sexual abuse when it sentenced Shahan. {¶32} During his trial, Shahan took the stand in his own defense. On direct examination, Shahan testified that he did not touch Lori s vagina. He claimed that Detective Warden s questions were designed to steer him towards an expected answer. In essence, he claimed that Detective Warden tricked him into confessing. On cross-examination, the state questioned Shahan about his conversation with Detective Warden. exchange took place: "STATE: Mr. State s Exhibit, the tape we played? Shahan, The following you ve SHAHAN: heard Yes, I the have. STATE: And you heard Detective Warden ask you questions and did a little bit, and said, no, this didn t happen, and then did a little bit more and then stopped for a while and then did a little bit more, and then finally, you admitted that you in fact touched her on the vagina. said, Well, I probably At one place in the statement, you pressed a little hard, place, you said, I was doing it to get pleasure. and another You did not? SHAHAN: I might have said that on the tape, but like I said, at the time he taped me, for one, he caught me by total surprise. You know, like I said, I had no idea any of this stuff had happened, and when he came and started talking to me, I mean, it just totally unnerved me, blew my mind away there, because I ve never been accused of anything with any of the, you know, 21 Washington App. No. 02CA63 nieces, nephews, or anything in my life." Immediately after this statement, the state elicited an admission that Shahan s niece had previously inappropriately. his accused him of touching her daughter In addition, the state asked Shahan whether had ever accused him of touching her inappropriately, to which he responded that he did not know if she had or not. {¶33} Shahan, regarding the himself, other opened allegations the when he door to claimed never been accused of this type of thing before. Koballa, Cuyahoga App. No. 82013, questions that he had See State v. 2003-Ohio-3535, at ¶26-28 (Defendant, when asked on cross examination if he was afraid of his co-defendant, answered that his co-defendant had a history on the streets, whereas, he didn t. This opened the door to evidence of defendant s juvenile adjudication for complicity to commit homicide.); State v. Bachtel, Holmes App. No. 99CA011, 2002-Ohio-2528 (Defendant, when asked on direct examination if he was a convicted felon, testified that he had a clean record. This opened the door to cross-examination regarding defendant s prior misdemeanor convictions.). See, also, State v. Broach, Hamilton App. No. C-010233, 2001-Ohio-8745. There was nothing in defense counsel s direct examination that would have opened the door examination to this evidence. encourage Shahan s Nor did the statement. state s cross- Rather, Shahan 22 Washington App. No. 02CA63 voluntarily extended his answer beyond that required by the question and, in doing so, opened the door to evidence of the prior allegations. opened the door Given that it was Shahan s own conduct that to this line of questioning, we cannot say counsel s failure to object constituted deficient performance. Such an objection would have been properly overruled. {¶34} Moreover, counsel may have chosen not to request a limiting instruction as part of a reasonable trial strategy. See State v. Smith (1991), 75 Ohio App.3d 73, 75-76, 598 N.E.2d 878. State v. Brown, Warren App. No. CA2002-03-026, 2002-Ohio- 5455, at ¶17; State v. Hester, Franklin App. No. 02AP-401, 2002Ohio-6966. instruction Counsel would only may have serve to believed draw that undue See Hester. the the contradict accused of offered the Shahan s evidence statement inappropriately of that he touching other had limiting attention other allegations of sexual abuse. state a to the In addition, allegations never anyone. before to been Therefore, a limiting instruction would have directed the jury to restrict its consideration of the evidence to credibility. Counsel may have believed that requesting such a limiting instruction would only serve to emphasize Shahan s credibility. Shahan s lie, thereby destroying Because counsel s failure to request a limiting instruction could have been part of a reasonable trial strategy, we conclude counsel did not act deficiently. 23 Washington App. No. 02CA63 {¶35} Even ineffective if for we were failing to to conclude object or to that counsel request a was limiting instruction, we are not convinced Shahan suffered prejudice as a result. would Shahan does not argue that the outcome of his trial have evidence been or different requested a if counsel limiting had objected instruction. to Rather, the he contends the outcome of his sentencing hearing would have been different. However, a review of the sentencing entry indicates the court did not rely on the other allegations in imposing sentence. Because the sentencing entry justifies the sentence imposed without relying on the other allegations, we conclude Shahan has not demonstrated prejudice. {¶36} Second, Shahan contends defense counsel was ineffective for failing to object to Mrs. Johnston s testimony about how Lori s behavior changed after the incident. He contends that because the state did not present an expert to testify about molestation, testimony. behavioral counsel should clues have associated objected to with Mrs. sexual Johnston s Shahan contends counsel s failure to object to Mrs. Johnston s testimony prejudiced him because the court relied on the testimony in sentencing him. He points to the court s finding that Lori suffered psychological damage as a result of the incident. 24 Washington App. No. 02CA63 {¶37} Mrs. Johnston testified that before Lori told her about the sexual abuse, Lori was getting more attitude and was having more conflict with situations. She testified that Lori s attitude has been getting better since Lori told her about the sexual abuse. Mrs. Johnston also testified that Lori used to receive straight As, but during the first half of the 2001/2002 school year, Lori received Fs. According to Mrs. Johnston, Lori s grades have been improving since Lori disclosed the sexual abuse. {¶38} Shahan cites no authority to support his argument that expert testimony is required to show the effects of sexual abuse on the victim. Evid.R. 602 allows lay witnesses to testify about matters within their personal knowledge. An individual has personal knowledge of a matter when the individual gains the knowledge through firsthand observation or experience. Bonacorsi v. Wheeling & Lake Ry. Co., 95 Ohio St.3d 314, 2002Ohio-2220, 767 N.E.2d 707, at ¶26, citing Black s Law Dictionary (7 Ed.Rev.1999) 875. changes in Lori s observations. Mrs. Johnston s testimony concerning the behavior was based on her firsthand Her testimony was far more descriptive than it was diagnostic. In fact, her testimony simply described the differences that she noticed in Lori s behavior both before and after Lori told her about the sexual abuse. Because trial counsel is not required to make futile or meritless objections, 25 Washington App. No. 02CA63 see State N.E.2d v. Mitchell 1370, we (1988), conclude 53 Ohio defense App.3d 117, 559 did counsel 119, not act ineffectively by failing to object to Mrs. Johnston s testimony concerning the changes in Lori s behavior. {¶39} Third, Shahan contends counsel was ineffective for failing to correct inconsistencies in Dr. Harding s testimony regarding his risk of recidivism. He contends failure to correct these inconsistencies prejudiced him because the court relied on Dr. Harding s testimony in labeling him a sexual predator determination predator. {¶40} Prior hearing, to Shahan s defense counsel sexual retained the services of a psychologist, Dr. J. Michael Harding, to assess Shahan s risk of recidivism. Dr. Harding submitted a report to the court in which he indicated that Shahan s sex offense recidivism rate within a six-year period was 16%. results of the Minnesota (MnSORT-R) and the Rapid Recidivism (RRASOR). Dr. Sex Risk He based this opinion on the Offender Screening Assessment Harding s for report Tool-Revised Sexual also Offense contained a section identifying the clinical risk factors associated with sexual offending. In that section, Dr. Harding indicated the clinical risk factors that applied to Shahan. {¶41} After submitting his report, however, Dr. Harding contacted the court and the parties to inform them that his 26 Washington App. No. 02CA63 report was material. inaccurate because he did not consider all the Thus, the defense called Dr. Harding to testify at the sexual predator determination hearing so he could clarify his report. At the hearing, Dr. Harding testified that he learned of the sexual abuse allegations of Shahan s niece and daughter after he had conducted his evaluation. that after learning administered the of the additional MnSORT-R. However, He indicated allegations, he indicated he re- that the MnSORT-R only accounts for actual indictments or charges. Thus, because Shahan s daughter and niece did not report the sexual abuse and Shahan was not charged, Dr. Harding testified that Shahan s score did not change. If, however, Shahan had been charged with those offenses, Dr. Harding indicated that Shahan would have, at a minimum, a 45% recidivism risk rate under the MnSORT-R. the Dr. Harding further testified that looking only at clinical risk indicators, and not at the score on the MnSORT-R, he would consider Shahan s risk of recidivism against females that he knows very well younger, to be considerable. who are 14, 13 years or When asked to describe Shahan s risk rate in terms of percentages, Dr. Harding testified: I would say, again, at least - - at the very least, a 45% recidivism risk rate, and possibly - - and - - probably higher. He later indicated that this figure represented Shahan s sex offense recidivism rate within a ten-year period. 27 Washington App. No. 02CA63 {¶42} A review of the transcript of Dr. Harding s testimony does not reveal inconsistencies in his testimony. Dr. Harding specifically testified that his ultimate conclusion was based on the clinical risk indicators, not the MnSORT-R. testimony is not inconsistent simply Dr. Harding s because his final conclusion regarding Shahan s recidivism risk rate, i.e. that Shahan has, Shahan s at a minimum, hypothetical risk a 45% rate risk rate, under the is the same MnSORT-R.4 as Shahan contends Dr. Harding testified that he could not rely on the other allegations legal process. statement on indicates Dr. because they had not been verified by the Our review of the record reveals no such general Dr. Harding s Harding part. testified Rather, he could the not transcript consider the allegations under the MnSORT-R because the test only accounts for charged offenses. Because we find no inconsistencies in Dr. Harding s we testimony, conclude defense counsel was not ineffective for failing to object to Dr. Harding s conclusion regarding Shahan s recidivism risk rate. {¶43} Finally, Shahan contends defense counsel was ineffective for failing to object to the admission of hearsay evidence regarding other allegations sexual predator determination hearing. 4 of sexual abuse at his He contends counsel s When referring to Shahan s hypothetical risk rate, we are referring to the recidivism risk rate Shahan would have under the MnSORT-R if he had been charged with the sexual abuse of his daughter and niece. 28 Washington App. No. 02CA63 failure to object prejudiced him because the court relied on the additional allegations in labeling him a sexual predator. In addition, he contends his counsel was ineffective for failing to object to Dr. Harding s testimony regarding a letter that Shahan had allegedly written to his niece. He claims the court also relied on the testimony concerning the contents of the letter when it labeled him a sexual predator. {¶44} Based on our resolution of Shahan s first assignment of error, we conclude defense counsel s failure to object to the admission sexual of hearsay abuse counsel. did evidence not regarding constitute other allegations of ineffective assistance of As we noted in our response to the second argument under this assignment of error, counsel is not required to make futile or meritless objections. See State v. Mitchell (1988), 53 Ohio App.3d 117, 119, 559 N.E.2d 1370. {¶45} We also conclude that Shahan suffered no prejudice from defense counsel s purported ineffectiveness in failing to object to Dr. Harding s testimony about the contents of Shahan s letter to his niece. the state asked that During cross-examination of Dr. Harding, he read aloud a portion allegedly written by Shahan to his niece. of a letter According to Dr. Harding s testimony, the letter stated: I got three years for what Lori said. Now, you probably don t believe me, but I never touched her in that way. My god, she was only eight years old, 29 Washington App. No. 02CA63 not 14 or 15. . The state then asked Dr. Harding, based on his evaluation of Shahan and his training and experience, what the phrase not 14 or 15 indicated. In response, Dr. Harding testified that the phrase is expressing a belief that a girl 14 or 15 years of age would be appropriate for a sex partner or to be touched in a sexually-oriented manner. Later, the state moved to have Shahan s letter admitted into evidence. At that point, defense counsel objected on authentication grounds. The court ruled that the letter would not be admitted into evidence but that the testimony itself could be considered since it had not been objected to. {¶46} Even if we were to find that defense counsel should have objected to Dr. Harding s testimony about the letter, we are not convinced that the result of Shahan s sexual predator determination hearing would have been different if counsel had objected. There is no evidence that the court relied on Dr. Harding s testimony regarding the contents of the letter when it classified Shahan as a sexual predator. Shahan points to the court s statement regarding his interest in young (underage) sexual partners as proof that the court relied on the testimony concerning the letter. However, this statement could be based on the nature of the current offense and the other allegations. At the time Shahan sexually abused Lori, she was eight years old. According to Shahan s daughter s statement, she was twelve 30 Washington App. No. 02CA63 when her father sexually abused her. And Shahan s niece s statement indicated that she was thirteen when Shahan sexually abused her. Moreover, as is evident from our review of Shahan s second assignment or error, there is substantial evidence, even without the testimony regarding the letter, court s sexual predator determination. did not suffer prejudice as a to support the Thus, we conclude Shahan result of defense counsel s failure to object to testimony regarding the contents of the letter Shahan allegedly wrote. Accordingly, we find that Shahan s third assignment of error lacks merit. {¶47} In summary, we conclude the court s admission of hearsay evidence regarding other allegations of sexual abuse at Shahan s sexual predator determination hearing did not violate Shahan s constitutional rights. In addition, we conclude there is competent, credible evidence in the record to support the court s Shahan sexual has assistance predator failed of to counsel determination. establish during that either predator determination hearing. Finally, he his we conclude received ineffective trial his or sexual Thus, we affirm the judgment of the trial court. JUDGMENT AFFIRMED. Evans, P.J. and Kline, J.: Concur in Judgment and Opinion For the Court 31 Washington App. No. 02CA63 BY: _______________________ William H. Harsha, Judge

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