State v. Durant , 99 N.E.3d 1217 ( 2017 )

[Cite as State v. Durant, 2017-Ohio-8482.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 105235
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
RAYMOND S. DURANT
DEFENDANT-APPELLANT
JUDGMENT:
AFFIRMED
Civil Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CR-92-290675-ZA
BEFORE: McCormack, J., E.A. Gallagher, P.J., and Celebrezze, J.
RELEASED AND JOURNALIZED: November 9, 2017
ATTORNEYS FOR APPELLANT
Mark A. Stanton
Cuyahoga County Public Defender
John T. Martin
Assistant Public Defender
310 Lakeside Ave., Ste. 200
Cleveland, OH 44113
ATTORNEYS FOR APPELLEE
Michael C. O’Malley
Cuyahoga County Prosecutor
By: Daniel T. Van
Assistant County Prosecutor
Justice Center, 9th Floor
1200 Ontario Street
Cleveland, OH 44113
TIM McCORMACK, J.:
{¶1} Defendant-appellant Raymond Durant appeals his sexual predator
classification. For the reasons that follow, we affirm.
{¶2} On April 29, 1993, Durant pleaded guilty to one count of rape in violation
of R.C. 2907.02 and one count of aggravated robbery in violation of R.C. 2923.02 and
2911.01. Both counts stem from an incident that occurred on November 19, 1992.
Durant, then 19 years old, came upon his 28-year-old victim while she was jogging in
Forest Hills Park. Intending to rob the victim, Durant produced a weapon and led her to
a secluded area. Durant took the victim’s rings, ordered her to remove her clothes, and
then raped her.
{¶3} On June 15, 1993, the trial court sentenced Durant to a maximum of 25
years in prison.
{¶4} On August 2, 2016, in preparation for Durant’s release, the trial court
conducted an H.B. 180 hearing. As a result of that hearing, Durant was classified as a
sexual predator.
{¶5} Durant now appeals, arguing in two assignments of error that the trial court
erred in classifying him as a sexual predator. Specifically, Durant argues that (1) the
trial court did not address the likelihood that he would reoffend, and (2) the state failed to
prove by clear and convincing evidence that Durant is likely to engage in the future in one
or more sexually oriented offenses.
Law and Analysis
{¶6} Former R.C. 2950.01 et seq., codified under H.B. 180 and popularly known
as “Megan’s Law,” created three classifications for sexual offenders: sexually oriented
offender, habitual sex offender, and sexual predator. See former R.C. 2950.09.
{¶7} The sexual predator classification attaches automatically in those cases
where an offender is convicted of a violent sexually oriented offense and a specification
alleging that he or she is a sexually violent predator. State v. Cook, 83 Ohio St. 3d 404,
407, 700 N.E.2d 570 (1998), citing former R.C. 2950.09(A). In all other cases of
sexually oriented offenders, including the instant case, the trial court may designate the
offender as a sexual predator “only after holding a hearing where the offender is entitled
to be represented by counsel, testify, and call and cross-examine witnesses.” Id., citing
former R.C. 2950.09(B)(1) and (C)(2).
{¶8} A sexual predator is “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.” Former R.C. 2950.01(E).
In making a determination as to whether an offender is a sexual predator,
the judge must consider all relevant factors, including, but not limited to, all
of the following: the offender’s age; prior criminal record; the age of the
victim of the sexually oriented offense; whether the sexually oriented
offense involved multiple victims; whether the offender used drugs or
alcohol to impair the victim or prevent the victim from resisting; 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 sexually oriented offense, whether
the offender participated in available programs for sex offenders; any
mental illness or mental disability of the offender; the nature of the
offender’s sexual conduct with the victim and whether that contact was part
of a demonstrated pattern of abuse; whether the offender, during
commission of the offense, displayed cruelty or threatened cruelty; and any
additional behavioral characteristics that contribute to the offender’s
conduct.
Cook, citing former R.C. 2950.09(B)(2)(a) through (j).
{¶9} After reviewing all of the testimony and considering the factors listed above,
“the judge shall determine by clear and convincing evidence whether the offender is a
sexual predator.” State v. Blake-Taylor, 8th Dist. Cuyahoga No. 100419,
2014-Ohio-3495, ¶ 4, citing former R.C. 2950.09(B)(4).
{¶10} Clear and convincing evidence is that which will produce in the trier of fact
“a firm belief or conviction as to the facts sought to be established.” Cross v. Ledford,
161 Ohio St. 469, 120 N.E.2d 118 (1954), paragraph three of the syllabus. While
requiring a greater standard of proof than a preponderance of the evidence, clear and
convincing evidence requires less than proof beyond a reasonable doubt. In re Parsons,
9th Dist. Lorain Nos. 97CA006662 and 97CA006663, 1997 Ohio App. LEXIS 5141
(Nov. 12, 1997).
{¶11} Because sexual predator classifications under Megan’s Law are considered
civil in nature, the civil manifest weight of the evidence standard of review applies on
appeal. State v. Larson, 8th Dist. Cuyahoga No. 101000, 2014-Ohio-4685, ¶ 17, citing
State v. Wilson, 113 Ohio St. 3d 382, 2007-Ohio-2202, 865 N.E.2d 1264, syllabus.
Because the civil manifest weight of the evidence affords the lower court more deference
than the criminal standard, the trial court’s determination will not be disturbed where it
was supported by some competent, credible evidence. Wilson at ¶ 26.
{¶12} Durant first argues that his sexual predator classification is invalid because
the trial court made that determination without making the required finding that he was
likely to commit a future sex offense. When describing a “model” sexual offender
classification hearing, the Ohio Supreme Court stated that “the trial court should consider
the 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.” State v. Eppinger, 91 Ohio St. 3d 158, 166, 743 N.E.2d 881(2001).
{¶13} Durant’s assertion that a finding that he was likely to commit a future sex
offense was “statutorily-required” relies on a misinterpretation of the law. In light of the
definition of sexual predator, a trial court’s discussion of the statutory factors need not
include an explicit statement that the offender is likely to reoffend. Such a statement is
redundant where the trial court determines that an individual is properly classified as a
sexual predator. Blake-Taylor, 8th Dist. Cuyahoga No. 100419, 2014-Ohio-3495, at ¶ 5.
{¶14} Durant next argues that the state was unable to prove by clear and
convincing evidence that he was likely to engage in the future in one or more sexually
oriented offenses. In support of this assignment of error, Durant discusses factors that
weigh against recidivism, including his age at the time of the offense.
{¶15} “[T]he trial court should discuss on the record the particular evidence and
factors upon which it relies in making its determination regarding the likelihood of
recidivism.” State v. Ware, 8th Dist. Cuyahoga No. 90051, 2008-Ohio-2788, ¶ 18, citing
State v. Thompson, 92 Ohio St. 3d 584, 752 N.E.2d 276 (2001). This discussion does
not, however, include a requirement that the trial court “tally up or list the statutory
factors in any particular fashion.” State v. Clayton, 8th Dist. Cuyahoga No. 81976,
2003-Ohio-3375, ¶ 27. Further, former R.C. 2950.09(B) “does not require that each
factor be met; rather, it simply requires the trial court consider those factors that are
relevant.” State v. Grimes, 143 Ohio App. 3d 86, 89, 757 N.E.2d 413 (8th Dist.2001).
{¶16} Although Durant refers to multiple statutory factors a trial court must
consider, he is unable to show a complete absence of competent and credible evidence on
which the trial court based his classification. Further, the factors Durant attempts to
present in mitigation were heard and fully considered by the trial court during the
classification hearing.
{¶17} Based on a thorough review of the classification hearing, we find that the
record includes a discussion of the relevant statutory factors, as well as multiple factors
that support the trial court’s classification of Durant as a sexual predator. The trial court
heard testimony regarding the Static-99, an actuarial instrument that assigns point values
to certain objective factors and produces an assessment of the likelihood that an
individual will reoffend. In its discussion of the Static-99, the trial court considered
Durant’s age, relationship history, relationship to the victim, among other factors. Durant
scored a “5” on the Static-99, which places him at a “moderate/high” risk of reoffending.
{¶18} The trial court also heard testimony regarding the nature of the underlying
sexual offense, Durant’s past behavioral problems, the degree to which he participated in
and completed sexual offender programming, and his disciplinary history while
incarcerated. While Durant has completed some sex-offender treatment while
incarcerated, he stopped attending a comprehensive sex offender program after three
months, without explanation and against the advice of staff and other inmates in the
program.
{¶19} Based upon a holistic view of the evidence presented in the classification
hearing, the trial court’s determination was based on competent and credible evidence.
{¶20} Durant’s assignments of error are overruled, and his sexual predator
classification is affirmed.
It is ordered that appellee recover of appellant 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.
___________________________________
TIM McCORMACK, JUDGE
FRANK D. CELEBREZZE, JR., J., CONCURS;
EILEEN A. GALLAGHER, P.J., DISSENTS (WITH SEPARATE OPINION
ATTACHED)
EILEEN A. GALLAGHER, P.J., DISSENTING:
{¶21} For the following reasons, I respectfully dissent from the majority opinion.
Because I find that the state failed to prove by clear and convincing evidence that Durant
is “likely to engage in the future in one or more sexually oriented offenses,” I would
reverse the trial court’s finding that he qualifies as a sexual predator.
{¶22} The psychiatric report prepared by Michael Caso identified four risk factors
for recidivism applicable to Durant: (1) his victim was unrelated, (2) he had prior criminal
offenses, (3) he had never married or been in a cohabitating relationship for more than
two years and (4) he failed to complete sex offender treatment. I find the third factor to
be inapplicable to Durant because he committed the present offense at the age of 19. To
penalize him for not establishing a cohabitating relationship at the age of 17 is patently
absurd. I find the fourth factor equally inapplicable. Although the record reflects that
Durant failed to complete all potential sex offender treatment programs offered to him
during his prison term, he did complete two separate programs in 1997 and 2013. In
fact, the record from Durant’s completed sex offender education program in 1997 reflects
that he admitted to his offending behavior, appeared to have an improved understanding
of the behavior and appeared to have increased victim empathy.
{¶23} Conversely, the factors applicable to Durant that were identified as
mitigating against recidivism are numerous: (1) no prior sexual offenses, (2) no sexual
preference for children, (3) no male children victims, (4) no deviant sexual preferences,
(5) no substance abuse problems, (6) older than 35 years of age at the time of release and
(7) does not present traits or behaviors associated with antisocial personality disorder.
{¶24} Furthermore, I find the majority’s reliance upon Durant’s Static-99 score to
be misplaced. On the modernized Static-99R, which was updated to appropriately factor
in an offender’s age at the time of his release from prison, Durant scored a “4,” placing
him into the category of “low-moderate” risk for re-offending. However, Durant’s score
included one point for failing to have established a two-year continuous, cohabitating
relationship. As I addressed above, I find this factor inapplicable to an individual who,
in order to avoid being penalized, would have had to begin a cohabitating relationship
before he or she reached the age of majority. Removing this penalty from Durant’s
Static-99R would reduce his score to a “3”and place him into the “low-moderate”
category for risk of re-offending. Caso testified that an individual with a score of “3” on
the Static-99R had a 6.6 percent chance of re-offending within five years.
{¶25} On these facts I cannot say that the trial court’s conclusion that Durant
qualifies as a sexual predator is supported by competent, credible evidence in the record.
I would reverse.