State v. Youlten , 151 Ohio App. 3d 518 ( 2003 )

{¶ 25} Although I concur with the result reached by the majority opinion, I write separately in order to state my belief regarding the proper legal analysis to apply.

{¶ 26} This court previously in "sexual predator" cases has followed precedent set by The Ohio Supreme Court that clearly indicates the trial court is the trier of fact in R.C. 2950.09 hearings. State v.Rogers, Cuyahoga App. No. 80435, 2002-Ohio-3443, citing State v. Cook,83 Ohio St.3d 404 at 426, 1998-Ohio-291. Therefore, the decision is reviewed by an appellate court to determine if the weight of the evidence supports it. State v. Thompson, 92 Ohio St.3d 584; 2001-Ohio-1288; Statev. Childs (2001), 142 Ohio App.3d 389. The matter for appellate review thus is not a "question of law," as the majority opinion asserts.

{¶ 27} Of course, deference must be given to the trial court's assessment of the evidence. Id. Nevertheless, a review of the record demonstrates appellant's essential argument has merit, since the trial court's determination lacks an adequate foundation in the evidence. Although the trial court conducted a proper hearing pursuant to the guidelines set forth in State v. Eppinger, 91 Ohio St.3d 158,2001-Ohio-247, the trial court did not take into consideration an important point: Eppinger cited with approval this court's comments inState v. Thompson (1999), 140 Ohio App.3d 648. Thompson reminded trial courts that "Megan's Laws" were designed to protect the most vulnerable victims from the likeliest offenders. Appellant in this case does not meet the envisioned standard.

{¶ 28} Schmedlen testified he had administered three assessment tests to appellant and had interviewed him twice. The tests utilized were the Abel Assessment for Sexual Interest, the Minnesota Sex Offenders Screening Tool, and the STATIC-99. Schmedlen testified only the latter two are "actuarial instruments used to assess risk for sexual reoffending." Appellant's scores on those tests were in a low category, indicating that over a period of fifteen years, he was in the 16th percentile for likelihood of reoffending.

{¶ 29} On the first test, appellant admitted having a sexual interest in and fantasies involving young boys, but stated he had "complete or nearly complete control" over acting on any such behavior. In addition, appellant expressed both an awareness that interest was "illegal" and culturally improper, and a remorse for his actions that led to his convictions.

{¶ 30} Appellant's statements had credibility, since they found corroboration in the "Sex Offender Program Summary" contained in his prison record and the defense documents that demonstrated appellant successfully had completed several sexual offenders programs. Moreover, according to Schmedlen, persons who either did not realize their deviant proclivities, or who did not differentiate between fantasies and acts, are at a significantly higher risk to reoffend; thus, appellant's awareness of his psychological problem was encouraging.

{¶ 31} The trial court, however, clearly relied upon only historical facts in making its decision in this case, and without apparent reason, did so to the exclusion of more recent evidence that related more relevantly to appellant's current likelihood to reoffend. Consequently, its decision is unsupported by the weight of the evidence.

{¶ 32} For the foregoing reason, appellant's argument should be credited, and his assignment of error, although inappropriately stated, sustained. I, therefore, concur with only the result reached by the majority.