State v. Holloway , 2021 Ohio 204 ( 2021 )

[Cite as State v. Holloway, 2021-Ohio-204.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
STATE OF OHIO, :
Plaintiff-Appellee, :
No. 109181
v. :
JAMES HOLLOWAY, :
Defendant-Appellant. :
JOURNAL ENTRY AND OPINION
JUDGMENT: AFFIRMED
RELEASED AND JOURNALIZED: January 28, 2021
Criminal Appeal from the Cuyahoga County Court of Common Pleas
Case No. CR-95-318675-ZA
Appearances:
Michael C. O’Malley, Cuyahoga County Prosecuting
Attorney, and Daniel Van, Assistant Prosecuting Attorney,
for appellee.
Cullen Sweeney, Cuyahoga County Public Defender, and
Paul A. Kuzmins, for appellant.
EILEEN T. GALLAGHER, P.J.:
Defendant-appellant, James Holloway, appeals an order classifying him
a sexual predator under Megan’s Law. He claims the following two errors:
1. The trial court failed to conduct an adequate classification hearing
as required by State v. Eppinger, 91 Ohio St.3d 158, [743 N.E.2d 881]
(2001), and in violation of appellants’ state and federal due process
rights.
2. The state failed to prove by clear and convincing evidence that
appellant is “likely to engage in the future in one or more sexually
oriented offenses.”
We find no merit to the appeal and affirm the trial court’s judgment.
I. Facts and Procedural History
Holloway pleaded guilty to sexual offenses in three separate cases. In
May 1995, Holloway pleaded guilty to the rape of a 16-year-old girl in Cuyahoga C.P.
CR-95-318675-ZA. He was sentenced to an indefinite prison term of seven to 25
years, to be served concurrently with sentences imposed in two other cases. In May
1995, Holloway also pleaded guilty to felonious sexual penetration of an adult female
in Cuyahoga C.P. CR-94-320603-ZA and was sentenced to seven to 25 years in
prison, to be served concurrently with the sentence imposed in Cuyahoga C.P. CR-
95-318675-ZA.
Fifteen years later, in February 2011, Holloway again pleaded guilty to
rape in Cuyahoga C.P. CR-10-541647-A and was sentenced to five years in prison, to
be served consecutive to his sentence in CR-95-318675-ZA. Although Holloway was
charged with rape in 2010, he allegedly committed the offense against a five-year-
old victim sometime between August 1, 1994 and December 1994.
In July 2019, the court held a sexual predator hearing on the state’s
motion to have Holloway classified as a sexual predator under Megan’s Law, former
R.C. Chapter 2950.01, et seq. At the court’s request, Michael Caso, the Chief
Psychiatric Social Worker for Cuyahoga County’s court psychiatric clinic, conducted
a House Bill 180 sexual offender designation evaluation of Holloway (the “report”
or “House Bill 180 report”). The report states, among other things, that Holloway
scored a two on the Static-99R, an actuarial instrument designed to estimate the
likelihood of sexual-offense recidivism. According to Caso, Holloway’s score places
him in the “average” risk category on the Static-99R. (House Bill 180 report p.12.)
However, Caso reported that the Static-99R does not measure all
relevant risk factors, and Caso outlines other risk factors in the report. (House Bill
180 report p.13.) Caso states that, while in prison, Holloway engaged in fighting,
encouraged disturbances, showed disrespect, and possessed contraband while in
prison. (Tr. 9.) Caso also states that Holloway has been diagnosed with a depressive
type of schizoaffective disorder as well as antisocial personality disorder. And, on
questioning, Holloway failed to articulate any plan for preventing the commission
of future sex crimes. Caso’s report indicates that although Holloway was much older
at the time of the evaluation than he was when he first went to prison, his decision-
making process is still impaired due to his mental illnesses and low intellectual
functioning.
The trial court concluded that Holloway’s Static-99R score did not
accurately reflect Holloway’s likelihood of recidivism and classified Holloway as a
sexual predator based on other risk factors outlined in Caso’s report. This appeal
followed.
II. Law and Analysis
A. Standard of Review
Former R.C. Chapter 2950, commonly known as Megan’s Law, divides
sex offenders into three categories (1) sexually oriented offenders, (2) habitual
sexual offenders, and (3) sexual predators. State v. Cook, 83 Ohio St.3d 404, 407,
700 N.E.2d 570 (1998). To be classified as a “sexual predator,” the most severe
designation, the trial court must find, by clear and convincing evidence, (1) that the
defendant has been convicted of, or pleaded guilty to, a sexually oriented offense and
(2) that he is likely to engage in one or more sexually oriented offenses in the future.
State v. Eppinger, 91 Ohio St.3d 158, 163, 743 N.E.2d 881 (2001), citing former R.C.
2950.01(E) and R.C. 2950.09(B)(3).
Clear and convincing evidence has been defined as “that 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.” Cross v. Ledford, 161 Ohio St.
469, 120 N.E.2d 118 (1954), paragraph three of the syllabus.
Former R.C. 2950.09(B)(3) lists ten factors to be considered in
determining whether a sexual offender is a sexual predator: (1) the offender’s age;
2) the offender’s criminal record; (3) the age of the victim; (4) the number of victims;
(5) whether the offender used drugs or alcohol to impair the victim; (6) if the
offender has previously been convicted of a crime, whether he completed his
sentence; and if the prior offense was a sexually oriented offense, whether he
completed a sex-offender program; (7) mental health history; (8) the nature of the
offender’s sexual contact with the victim; (9) whether the offender displayed cruelty
or made threats of cruelty; and (10) any other “behavioral characteristics” that
contribute to the offender’s actions. See former R.C. 2950.09(B)(3)(a)-(j).
Because sex-offender classifications under Megan’s Law are civil in
nature, we review sex-offender designations under a civil manifest-weight-of-the-
evidence standard. State v. Wilson, 113 Ohio St.3d 382, 2007-Ohio-2202, 865
N.E.2d 1264, at syllabus. The manifest-weight-of-the-evidence standard concerns
“‘the inclination of the greater amount of credible evidence, offered in a trial, to
support one side of the issue rather than the other.’” Eastley v. Volkman, 132 Ohio
St.3d 328, 2012-Ohio-2179, 972 N.E.2d 517, ¶ 12, quoting State v. Thompkins, 78
Ohio St.3d 380, 387, 678 N.E.2d 541 (1997). A reviewing court “‘weighs the evidence
and all reasonable inferences, considers the credibility of witnesses and determines
whether in resolving conflicts in the evidence, the [factfinder] clearly lost its way and
created such a manifest miscarriage of justice that the [judgment] must be reversed
and a new trial ordered.’” Thompkins at 387, quoting State v. Martin, 20 Ohio
App.3d 172, 175, 485 N.E.2d 717 (1st Dist.1983). “In weighing the evidence, the court
of appeals must always be mindful of the presumption in favor of the trier of fact.”
Eastley at ¶ 21.
B. Sexual-Predator Classification
In the first assignment of error, Holloway argues the trial court failed
to conduct an adequate sex-offender classification hearing. He contends the hearing
failed to comply with the requirements for sex-offender classification hearings
outlined by the Ohio Supreme Court in Eppinger, 91 Ohio St.3d 158, 743 N.E.2d
881. In the second assignment of error, Holloway argues the trial court erred in
classifying him as a sexual predator because the state failed to prove, by clear and
convincing evidence, that he is likely to engage in one or more sexually oriented
offenses in the future. We discuss these assigned errors together because they are
interrelated.
In Eppinger, the Ohio Supreme Court described a “model procedure
for sexual classification hearings” as follows:
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 * * *, the state may need to
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 * * * 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. * * *
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.
Eppinger at 166, citing State v. Thompson, 140 Ohio App.3d 638, 748 N.E.2d 1144(8th Dist.1999).
In State v. Blake-Taylor, 8th Dist. Cuyahoga No. 100419, 2014-Ohio-
3495, this court explained that although the “model” hearing described in Eppinger
may be ideal, “it is not mandatory.” Id. at ¶ 9, citing Eppinger at 167. “Eppinger
made it clear that it was only ‘suggesting’ standards for sexual predator classification
hearings.” Id., citing Eppinger at 167. Nevertheless, in order to affirm the trial
court’s judgment, there must be a record to support the statutory findings required
to classify someone as a sexual predator by clear and convincing evidence. Eppinger
at 163.
Holloway argues the trial court failed to make an adequate record to
classify him as a sexual predator because the court failed to expressly find, on the
record, that he was likely to commit a sexually-oriented offense in the future.
However, “a trial court’s discussion of the statutory factors need not include an
explicit statement that the offender is likely to reoffend.” State v. Durant, 8th Dist.
Cuyahoga No. 105235, 2017-Ohio-8482, ¶ 13. Such a statement would be redundant
where the trial court determines that an individual is properly classified as a sexual
predator since the term “sexual predator” is defined as a sex offender who is likely
to commit a sexually-oriented offense in the future. Id. citing Blake-Taylor at ¶ 5.
Further, the trial court is not required to exhaustively list every reason
for classifying the offender as a sexual predator. And, all three Eppinger objectives
were accomplished during the sex-offender classification hearing. The court stated
on the record that it was holding a House Bill 180 hearing to determine if Holloway
was a sexual predator and invited the state and defense counsel to present evidence
and argument in support of their respective positions. Thereafter, the state
requested that Holloway be classified as a sexual predator based on the factors
enumerated in R.C. 2950.09(B)(3).
With respect to R.C. 2950.09(B)(3) factors, the state noted that
Holloway committed sexual offenses against both children and adults, one of whom
was a five-year-old family member. (Tr. 12.) According to Caso’s report, Holloway
failed to complete sex-offender treatment,1 never married, has been diagnosed with
antisocial personality disorder, and has a problem with substance abuse. The state
asserted that these risk factors are not taken into account in the Static-99R, but are,
as Caso explains, relevant to Holloway’s overall risk of recidivism. (Tr. 12, 18.)
Defense counsel argued that Holloway was 18 years old when he
committed the three sex offenses, that Holloway was 43 years old at the time of the
sex-offender classification hearing, and that he would, therefore, make different
1 Holloway admitted to Caso that “he has never been involved in sexual offender
treatment.” (House Bill 180 report p.10.)
decisions now than when he committed the offenses. (Tr. 14.) Defense counsel also
asserted that Holloway had no prior record before he committed the offenses giving
to this case and that his score of two on the Static-99R indicates a low risk of
reoffending. (Tr. 15.)
However, Caso’s report indicates, as argued by the prosecutor, that the
Static-99R does not measure all relevant risk factors. And, Holloway’s score placed
him in the “average” risk category as opposed to the low-risk category represented
by defense counsel. Caso’s House Bill 180 report further indicates that despite
Holloway’s age, his decision-making process is still impaired due to his mental
illness and low level of intellectual functioning. Caso’s report states that although
Holloway denied having a mental-health problem, he self-reported that hearing
auditory hallucinations was “‘normal for him,’” and others reported that Holloway
was “‘aggressive and paranoid.’” (House Bill 180 report p.8.)
With respect to Holloway’s antisocial personality disorder, Caso’s
report states, in relevant part:
This diagnosis is based on a pervasive pattern of a disregard for and
violation of the rights of others occurring since age 15. The defendant
has failed to conform to social norms. He has obviously been deceitful,
impulsive and aggressive with reckless disregard for the safety of others
and consistent irresponsibility. * * * The defendant’s antisocial
behavior is not exclusively during the course of a severe mental illness.
(House Bill 180 report p. 11.)
Moreover, when Caso asked Holloway how he planned to avoid future
sexual crimes when he is released from prison, Holloway was unable to provide
specific information regarding any sex-offender-relapse prevention plan. (House
Bill 180 report p. 8.) And, despite defense counsel’s argument to the contrary, the
House Bill 180 report indicates that Holloway had “a history of involvement with
the juvenile justice system.” (Tr. 18.)
Because Holloway pleaded guilty to the sex offenses alleged in all of
the indictments against him, there was no trial transcript or record for the parties to
introduce. Nevertheless, the trial court reviewed Holloway’s score on the Static-99R
as well as the other risk factors discussed in Caso’s report. In finding that Holloway
met the definition of a “sexual predator,” the court acknowledged Holloway’s history
of sex offenses and further stated, in relevant part:
He has been involved with the criminal justice system as a juvenile and
as an adult on numerous occasions and had substantial problems with
authority figures throughout his life, which included fighting with
various students and urinating in front of a teacher. He has had many
temper problems throughout the years. He tried to harm himself in
1990, he was psychiatrically hospitalized in 1991, and has been
diagnosed in the range of * * * borderline intellectual functioning. He
also has a history of alcohol, PCP, and cannabis use, and he has had
ongoing psychiatric issues for some time.
(Tr. 21.) Thus, the trial court concluded that the state met its burden of
demonstrating, by clear and convincing evidence, that Holloway was a sexual
predator and classified Holloway accordingly. The transcript of the hearing and
Caso’s report, which was admitted into evidence, present a sufficient record for
review because the transcript provides an account of both state and defense
counsel’s analysis of the risk factors outlined in former R.C. 2950.09(B)(3), and
Caso’s report provides evidence to support the court’s conclusion.
Therefore, the transcript of the hearing and Caso’s report provide an
adequate record for reviewing the trial court’s determination that Holloway is a
sexual predator under Megan’s Law. And, the trial court made the findings required
by former R.C. 2950.09(B)(3) to classify Holloway as a sexual predator, and those
findings are supported by clear and convincing evidence.
Accordingly, the first and second assignments of error are overruled.
Judgment affirmed.
It is ordered that appellee recover from 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. The defendant’s
conviction having been affirmed, any bail pending is terminated. Case remanded to
the trial court for execution of sentence.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27
of the Rules of Appellate Procedure.
EILEEN T. GALLAGHER, PRESIDING JUDGE
EILEEN A. GALLAGHER, J., and
MARY EILEEN KILBANE, J., CONCUR