State of Ohio v. Richard Schroer

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COURT OF APPEALS THIRD APPELLATE DISTRICT AUGLAIZE COUNTY STATE OF OHIO PLAINTIFF-APPELLEE CASE NO. 2-99-44 v. RICHARD SCHROER OPIN ION DEFENDANT-APPELLANT CHARACTER OF PROCEEDINGS: Criminal appeal from Common Pleas Court JUDGMENT: Judgment affirmed DATE OF JUDGMENT ENTRY: March 31, 2000 ATTORNEYS: MR. S. MARK WELLER Public Defender Reg. No. 0019521 119 West Auglaize Street P.O. Box 180 Wapakoneta, Ohio 45895 For Appellant MR. EDWIN A. PIERCE Prosecuting Attorney Reg. No. 0023846 P.O. Box 1992 Wapakoneta, Ohio 45895 For Appellee Case No. 2-99-44 BRYANT, J. Defendant-Appellant, Richard Schroer, appeals from the decision of the Auglaize County Court of Common Pleas adjudicating him to be a sexual predator pursuant to R.C. Chapter 2950. On August 9, 1993 Appellant was indicted by the Auglaize County Grand Jury on one count of Felonious Sexual Penetration, a violation of R. C. §2907.12(A)(1)(b), and one count of Gross Sexual Imposition, a violation of R.C. §2907.05. On November 9, 1993 Appellant amended his original Not Guilty Plea and entered a Guilty Plea to an amended charge of Attempted Sexual Penetration, a violation of R.C. §§2923.02 & 2907.12, a felony of the second degree. Thereafter, Appellant was sentenced to not less than four (4) nor more than fifteen (15) years in the Ohio Department of Rehabilitation and Corrections. On April 7, 1995 Appellant field a Motion for Super Shock Probation which was denied on May 2, 1995. A motion to vacate and Modify Sentence was denied on September 30, 1996. A Petition for Post Conviction Relief was dismissed without hearing on March 14, 1997. On July 30, 1999 Appellant was identified as being potentially subject to adjudication as a sexual predator pursuant to R.C. Chapter 2950. At an October 1, 1999 hearing, the court determined that Appellant was a sexually oriented offender and that he was likely to commit one or more such offenses in the future. Consequently, Appellant was adjudicated a 2 Case No. 2-99-44 sexual predator. It is from this adjudication that Appellant now appeals, prosecuting six assignments of error. Assignment of Error Number One The Trial Court erred, in violation of the Ex Post Facto Clause of the United States Constitution, in finding Defendant-Appellant to be a sexual predator. In State v. Cook (1998), 83 Ohio State.3d 404, the Supreme Court of Ohio addressed this precise issue. In upholding the constitutionality of R.C. Chapter 2950, the Supreme Court found that the registration and notification provisions set forth in R.C. §2950.09(B)(1), as applied to conduct occurring prior to the effective date of the statute, do not violate the Ex Post Facto Clause of the United States Constitution or the Retroactivity Clause of the Ohio Constitution. Id. at paragraphs one and two of the syllabus. This Court has consistently followed this Supreme Court precedent, see, e.g., State v. Lacey (Sept. 29, 1999), Union App. No. 14-99-10, 14-99-11, unreported; State v. Fontes (Nov. 11, 1998), Union App. No. 14-97-45, unreported; State v. Cady (Nov. 5, 1998), Crawford App. No. 3-9814, unreported; thus the trial court did not err in applying R.C. Chapter 2950 to Appellant. On this authority, Appellant s First Assignment of error is overruled. Assignment of Error Number Two The trial court erred, in violation of the Cruel and Unusual Punishment Clauses of the Eighth Amendment to the United States Constitution and Section 9, Article 1 of the Ohio Constitution, in finding the Defendant-Appellant to be a sexual predator. 3 Case No. 2-99-44 The Eighth Amendment to the United States Constitution and Section 9, Article I of the Ohio Constitution prohibit the imposition of cruel and unusual punishment. The Ohio Supreme Court, in Cook, 83 Ohio St.3d at 423, concluded that the registration and notification provisions of R.C. Chapter 2950 are not punishment or punitive in nature but, rather, are remedial measures designed to ensure the public safety. Thus, the protections against cruel and unusual punishments are not implicated. Accordingly, Appellant s Second Assignment of error is without merit. Assignment of Error Number Three The trial court erred, in violation of the Double Jeopardy Clauses of the Fifth and Fourteenth Amendments to the United States Constitution and Section 10, Article 1 of the Ohio Constitution, in finding the Defendant-Appellant to be a sexual predator. The Double Jeopardy Clause contained in Section 10, Article I of the Ohio Constitution, and in the Fifth Amendment to the United States Constitution, applied to the states through the Fourteenth Amendment to the United States Constitution prohibit multiple punishments for the same offense. Although not addressing the issue of double jeopardy directly, the Ohio Supreme Court in Cook, supra, concluded that the sexual predator act is not punitive in nature but, rather, has a nonpunitive or regulatory purpose and effect. Consequently, the protections afforded against double jeopardy in either the Ohio or United States Constitutions 4 Case No. 2-99-44 are not implicated. Accordingly, Appellant s Third Assignment of error is without merit. Assignment of Error Number Four R.C. Chapter 2950, as amended by H.B. 180, provides no guidance as to how the factors in R.C. 2950.09(B)(2) are to be considered and weighed, rendering the law vague, in violation of the Due Process Clauses of the Fourteenth Amendment to the United States Constitution and Section 16, Article I of the Ohio Constitution. A statute is unconstitutionally vague if men of common intelligence must necessarily guess at its meaning and differ as to its application. Connelly v. General Construction Co. (1926), 269 U.S. 385, 391, 46 S.Ct. 126, 70 L.Ed. 322. A statute is not unconstitutionally vague if it (1) provides sufficient notice of its proscriptions, and (2) contains reasonably clear guidelines to prevent official arbitrariness or discrimination in its enforcement. Perez v. Cleveland (1997), 78 Ohio St.3d 376, 378, 678 N.E.2d 537. The void-for-vagueness doctrine does not require that a statute be drafted with scientific precision, or that every detail regarding its procedural enforcement be contained therein. Instead, the doctrine permits a statute's certainty to be ascertained by application of commonly accepted tools of judicial construction, with courts indulging every reasonable interpretation in favor of finding the statute constitutional. Id. at 378-379, 678 N.E.2d 537 (citations omitted). 5 Case No. 2-99-44 In State v. Avery (1998), 126 Ohio App.3d 36 and State v. James (Dec. 8, 1999), Hardin App. No. 6-99-5, unreported, this Court rejected vagueness challenges to the factors set forth in R.C. §2925.0, similar to the one being raised in the case before us. We are compelled to follow the reasoning of our previous decisions. Accordingly, Appellant s Fourth Assignment of Error is without merit. Assignment of Error Number Five The trial court erred, in violation of Section 1, Article I of the Ohio Constitution, in finding the Defendant-Appellant to be a sexual predator, because Ohio s sexual predator law is an invalid exercise of the police power and deprives individuals of their inalienable and natural-law rights. This Court has addressed this very issue on numerous occasions. See, e.g., State v. Fisher (Sept. 2, 1999), Allen App. No. 1-99-23, unreported; State v. Marker (Sept. 1, 1999), Seneca App. No. 13-99-05, unreported; State v. Joyce (Sept. 2, 1999), Allen App. No. 1-99-31, unreported; State v. Simms (Sept 12, 1999), Allen App. No. 1-99-38, unreported; State v. Conley (Sept 29, 1999), Allen App. No. 1-99-39, unreported; State v. Bradley (Oct. 13, 1999), Logan App. No. 8-99-07, unreported; State v. Kinkle (Oct. 28, 1999), Allen App. No. 1-99-55, unreported; State v. Roeder (Oct. 21, 1999), Allen App. No. 1-99-43, unreported; State v. Bowers (Oct. 20, 1999), Auglaize App. No. 2-99-17, unreported; State v. Anderson (Nov. 9, 1999), Auglaize App. No. 2-99-15, unreported; State v. Gallaspie (Oct. 21, 1999), Allen App. No. 1-99-51, unreported; and State v. Webb 6 Case No. 2-99-44 (Sept. 2, 1999), Allen App. No. 1-99-37, unreported. We have repeatedly upheld the constitutionality of R.C. Chapter 2950 by finding that the statute constitutes a valid use of the state s police power and it is not an unreasonable or arbitrary infringement upon privacy rights, nor is it unduly oppressive or burdensome. We are again compelled to follow the reasoning of our previous decisions. Accordingly, Appellant s Fourth Assignment of Error is without merit. Assignment of Error Number Six The evidence adduced at trial by the State of Ohio failed to prove, by clear and convincing evidence, that the Appellant is likely to engage in the future in one or more sexually oriented offenses thus rendering the Court s decision against the manifest weight of the evidence. Appellant asserts in his sixth assignment of error that the trial court erred in finding that he is a sexual predator. Specifically, Appellant maintains that the trial court's decision that he is likely to engage in the future in one or more sexually oriented offenses is not supported by sufficient evidence.1 We first note that R.C. §2950.01(E) defines the term sexual predator as follows: 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. 1 Although Appellant s assignment of error appears to assert a manifest weight of the evidence claim, in his brief Appellant argues that the finding of the trial court was against the sufficiency of the evidence. Thus, we will address Appellant s argument under a sufficiency of the evidence standard. 7 Case No. 2-99-44 R.C. §2950.09(B)(2) sets forth the factors that a trial court should consider when deciding an offender's status as a sexual predator: In making a determination * * * as to whether an offender is a sexual predator, the judge shall consider all relevant factors, including, but not limited to, all of the following: (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 * * *; (d) Whether the sexually oriented offense * * * 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. 8 Case No. 2-99-44 R.C. §2950.09(C)(2) states that after reviewing all testimony, evidence, and the factors listed in R.C. §2950.09(B)(2), the court shall determine by clear and convincing evidence whether the offender is a sexual predator. Thus, there must be sufficient evidence, as a matter of law, for the trial court to find by clear and convincing evidence that Appellant is a sexual predator. The standard of clear and convincing evidence is as follows: [T]hat 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, and which will produce in the mind of the trier of facts a firm belief or conviction as to the facts sought to be established. State v. Schiebel (1990), 55 Ohio St.3d 71, 74, 564 N.E.2d 54, citing Cross v. Ledford (1954), 161 Ohio St. 469, 120 N.E.2d 118. In reviewing the 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. Again, 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. In the instant matter, Appellant pleaded guilty to and was convicted on one count of Attempted Felonious Sexual Penetration, a violation of R.C. §§2923.02 and 2907.12. The offense for which Appellant was convicted qualifies as a sexually 9 Case No. 2-99-44 oriented offense under R.C. §2950.01(D)(5).2 Thus, we need only determine whether there is sufficient evidence to show, by the requisite clear and convincing standard, that Appellant is likely to engage in these types of offenses in the future. In the case before us, after reviewing all the testimony, evidence, and the factors listed in R.C. §2950.09(B)(2), the trial court found by clear and convincing evidence that Appellant is likely to engage in the future in one or more sexually oriented offenses. In so finding, the trial court placed great emphasis on the factors listed in R.C. §2950.09(B)(2), which weigh heavily in favor of a finding of sexual predator status. The following facts support the trial court's determination: Appellant has a criminal record that includes numerous prior sexual oriented offenses. He has a reported history of offending against many victims ranging in age from eleven (his daughter) through adulthood. His pattern of behavior exhibits an addiction to pornography. Appellant has a long history of sexual offending, including numerous instances of public indecency, and he admitted to being a victim of sexual abuse himself. He has a long history of substance abuse. Appellant has a history of repeated treatment failures for both substance abuse and sexual offending. Appellant acknowledged that he targeted his daughter in part because 2 Appellant was originally convicted of violating R.C.§2907.12. Section 2907.12 was repealed effective September 3, 1996. However, pursuant to the current version of R.C.§2950.01(D)(5), sexually oriented offenses include a violation of any former law that was substantially equivalent to any offense listed in 10 Case No. 2-99-44 he did not think his mentally handicapped daughter would be able to relate the molestation to anyone. Finally, his history of sexual offending demonstrates a pattern of chronic and compulsive behavior. Pursuant to the above facts, we hold that the trial court had sufficient evidence before it from which to find by clear and convincing evidence that Appellant is likely to engage in the future in one or more sexually oriented offenses. Consequently, we cannot find that the evidence was insufficient as a matter of law to support the trial court's determination that Appellant is a sexual predator. Accordingly, Appellant's Sixth assignment of error is not well taken and is overruled. Having found no error prejudicial to Appellant herein, in the particulars assigned and argued, we affirm the judgment of the trial court. Judgment affirmed. SHAW and WALTERS, JJ., concur. c division (D)(1), (2), (3) or (4) of the section. Former R.C.§2907.12 is substantially equivalent to the current version of R.C.§2907.02. Consequently, Appellant was convicted of a sexually oriented offense. 11

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