State v. Talani , 2020 Ohio 3369 ( 2020 )

[Cite as State v. Talani, 2020-Ohio-3369.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
STATE OF OHIO, :
Plaintiff-Appellee, :
No. 108788
v. :
JEFFREY TALANI, :
Defendant-Appellant. :
JOURNAL ENTRY AND OPINION
JUDGMENT: AFFIRMED
RELEASED AND JOURNALIZED: June 18, 2020
Civil Appeal from the Cuyahoga County Court of Common Pleas
Case Nos. CR-88-225344-ZA and CR-94-313066-ZA
Appearances:
Michael C. O’Malley, Cuyahoga County Prosecuting
Attorney, and Daniel Van, Assistant Prosecuting Attorney,
for appellee.
The Law Offices of Eric L. Foster, L.L.C., and Eric L.
Foster, for appellant.
MARY J. BOYLE, P.J.:
Defendant-appellant, Jeffrey Talani, appeals his classification as a
sexual predator. He raises one assignment of error for our review:
The trial court erred in finding the state proved by clear and convincing
evidence that Jeffrey Talani is a sexual predator under R.C. 2950.09.
Finding no merit to his assignment of error, we affirm the trial court’s
judgment.
I. Factual Background and Procedural History
In 1988, in Cuyahoga C.P. No. CR-88-225344-ZA, Talani pleaded
guilty to one count of sexual battery, with a specification that he caused physical
harm to the victim, and three counts of gross sexual imposition. The trial court
sentenced him to two-year prison terms for each count of gross sexual imposition,
to be served consecutively to each other and concurrently to a prison term of four-
to-ten years for sexual battery with the specification for causing physical harm to the
victim.
In 1995, in Cuyahoga C.P. No. CR-94-313066-ZA, a jury convicted
Talani of one count of rape and one count of gross sexual imposition. The trial court
sentenced him to life imprisonment for rape and a two-year prison term for gross
sexual imposition, to run consecutively with the term of life imprisonment for rape.
The trial court further ordered that Talani’s sentence for CR-94-313066-ZA run
consecutively to his sentence for CR-88-225344-ZA. This court affirmed his
convictions. State v. Talani, 8th Dist. Cuyahoga No. 68750, 1996 Ohio App. LEXIS
60 (Jan. 11, 1996). In 1996, Talani petitioned to vacate or set aside his sentence, the
trial court denied his motion, and this court affirmed. State v. Talani, 8th Dist.
Cuyahoga No. 72031, 1997 Ohio App. LEXIS 5309 (Nov. 26, 1997).
In a prior appeal, State v. Talani, 8th Dist. Cuyahoga No. 68750, 1996
Ohio App. LEXIS 60 (Jan. 11, 1996), we described the facts underlying Talani’s
convictions as follows:
[D.T.], the victim [in CR-94-313066-ZA], testified that when she was
nine years old Talani raped her. The victim stated that her brother
passed away and the night before the funeral, February 18, 1983, she
stayed over Talani’s house at the request of her parents. The victim
stated that she was asleep on the couch in the living room and Talani
woke her up and told her to go to the basement with him. The victim
testified that an adult movie was playing on the television in the
basement. Talani ordered her to remove her clothes, made her touch
his penis, and anally raped her.
The victim testified that Talani, a city of Brooklyn Heights Police
Officer, told her that if she ever told anyone about the incident he would
kill her parents. The victim never reported the incident to anyone, not
even to the police when she was questioned in 1987 about separate
charges against Talani.
[D.T.] stated that in 1994, she was treated for colitis and she informed
her doctor that she had been anally raped years earlier. Her doctor sent
her to see psychologist Martha Keyes to discuss the rape. In April 1994,
the victim went to see Keyes and for the first time revealed the events
that occurred on February 18, 1983.
[L.T.], the victim’s mother testified that after February 13, 1983 her
daughter was withdrawn and quiet. In days that followed, the victim
blurted out that it was all [L.T.]’s fault. [L.T.] did not understand what
her daughter meant.
[A.A.], another sexual abuse victim of Talani, testified that Talani had
sexually abused her in 1987. [A.A.] stated that while Talani was the
chief of police he forced her to rub his penis to ejaculation, anally and
digitally penetrated her. Talani was convicted of sexually abusing [A.A.]
[in CR-88-225344-ZA] and was serving his sentence during the trial
now on appeal.
Id. at 1-3.
In 2018, the Ohio Department of Rehabilitation and Correction
notified the trial court and Talani that Talani required a sexual predator
classification hearing pursuant to Megan’s Law since he was convicted before 1997
and is still serving his prison sentence. The court psychiatric clinic evaluated 65-
year-old Talani and completed a sexual offender evaluation report dated January
28, 2019.
According to the evaluation report, Talani was police chief in
Brooklyn Heights in 1980 until he was charged with sexual offenses in 1987, and he
was on the Cuyahoga Heights School Board from 1984 to 1988. The report states
that in 1987, Talani was charged with sexual abuse of two girls, ages four and eight,
and in 1994, he was charged with sexually assaulting a nine-year-old girl in 1983.
Talani told the evaluator “that he did not commit any sexual assaults against these
females.” According to the report, the Parole Board has denied his requests for
parole “several times” because Talani has continued to deny that he committed any
sexual offenses.
The evaluation report states that the “Comprehensive Sex Offender
Program was recommended,” but Talani did not complete it because he denied
“sexually abusing anyone.” The evaluator asked Talani what he learned from the
sexual offender programming that he did complete, and Talani replied, “I learned
that I ain’t no pervert—that I don’t have no sexual deviance.”
The evaluation report explains that in 2012, Talani was sanctioned for
having a relationship with a female prison guard. Talani told the evaluator that he
“became attracted to” the guard and that they “had feelings for each other” but that
their relationship was “never sexual.”
The evaluation report summarizes Talani’s results on the Static-99R
actuarial instrument designed to estimate the likelihood of sexual-offense
recidivism. Talani’s Static-99R score was negative two, which indicates that he has
a “very low” risk of recidivism. The evaluation report also explains that based on the
Abel Assessment for Sexual Interest, Talani has a sexual interest in adolescent and
adult females. Based on the objective measure of the Abel Assessment, Talani “has
a significant sexual interest in adolescent (14-to-17-year-old) and adult females.”
The report further noted that “it is ‘normal’ for adult test subjects to have a sexual
interest in adolescents.”
On March 20, 2019, the trial court held a hearing to determine
whether Talani should be classified as a sexual predator under Am. Sub. H.B. No.
180 (“Megan’s Law”). The state entered as exhibits the sexual offender evaluation
report; the indictment, plea, and sentence for CR-88-225344-ZA; the indictment,
verdict, and sentence for CR-94-313066-ZA; the indictment, plea, and sentence for
a nonsexual, assault offense that Talani committed in 1988; a blank Static-99R
scoring sheet; and the Static-99R coding rule book.
On March 21, 2019, the trial court found that the state had shown by
clear and convincing evidence that Talani should be classified as a sexual predator
considering the statutory factors, his age, his prior history and convictions for sexual
offenses, the victims’ ages, number of victims, failure to complete sex offender
programming while in prison, and a pattern of abuse and threats of cruelty. The
trial court then advised Talani on his registration requirements. Under Megan’s
Law, a sexual-predator classification is the most severe designation, requiring
Talani to register every 90 days for the rest of his life. Former R.C. 2950.06(B)(1)
and 2950.07(B)(1).
It is from this judgment that Talani now appeals.
II. Law and Analysis
In his sole assignment of error, Talani argues that the trial court erred
in classifying him as a sexual predator. He contends that the evidence does not
support the trial court’s finding that he is “likely to engage in the future in one or
more sexually oriented offenses.” He maintains his innocence and argues that his
completion of only mandatory sex offender programming should not count against
him. He further contends that the Static-99R Assessment suggests that he is
unlikely to reoffend.
Neither party disputes that because Talani committed his crimes
before Megan’s Law was enacted in 1997 and was still serving his sentence, he was
subject to the sexual offender classification system under Megan’s Law. See State v.
Kahn, 8th Dist. Cuyahoga No. 104360, 2017-Ohio-4067, ¶ 25 (offenders who
committed their offenses prior to January 1, 2008 are subject to the sexual-offender
classification system and hearing requirements under Megan’s Law).
Under Megan’s Law, there were three classifications for sexual
offenders: sexually oriented offender, habitual sex offender, and sexual predator.
The main distinctions in the classifications were the reporting requirements:
a sexual predator had to register his or her address every 90 days for life; a habitual
sex offender had to register his or her address annually for 20 years; and a sexually
oriented offender had to register his or her address annually for 10 years. See former
R.C. 2950.04(C)(2); former 2950.06(B)(1) and (2); and former 2950.07(B)(1) and
(2).
The “sexually oriented offender” classification is the least restrictive
classification. State v. Hayden, 96 Ohio St.3d 211, 2002-Ohio-4169, 773 N.E.2d
502, ¶ 9. While it was not defined by R.C. Chapter 2950, the Ohio Supreme Court
explained that “a ‘sexually oriented offender’ is a person ‘who has committed a
“sexually oriented offense” as that term is defined in R.C. 2950.01(D) but who does
not fit the description of either habitual sex offender or sexual predator.’” Id.,quoting State v. Cook, 83 Ohio St.3d 404, 700 N.E.2d 570 (1998), and State v.
Williams, 88 Ohio St.3d 513, 728 N.E.2d 342 (2000). The next classification is
“habitual sex offender,” which is defined as a person who “is convicted of or pleads
guilty to a sexually oriented offense and who previously has been convicted of or
pleaded guilty to one or more sexually oriented offenses.” Former R.C. 2950.01(B).
Finally, the most restrictive classification is “sexual predator,” which is defined 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.” Former R.C. 2950.01(E).
Sexual predator classifications under Megan’s Law are considered
civil in nature. State v. Wilson, 113 Ohio St.3d 382, 2007-Ohio-2202, 865 N.E.2d
1264, syllabus. As a result, the civil manifest-weight-of-the-evidence standard of
review applies on appeal. State v. Nelson, 8th Dist. Cuyahoga No. 101228, 2014-
Ohio-5285, ¶ 8. That standard gives “great deference” to findings of fact, so
judgments supported by competent, credible evidence must be affirmed. Wilson at
¶ 26. Moreover, the state had the burden of proving by clear and convincing
evidence that Talani was a sexual predator. State v. Hendricks, 8th Dist. Cuyahoga
No. 102365, 2015-Ohio-3035, ¶ 13. “Clear and convincing evidence” is “that
measure or degree of proof” that “produce[s] in the mind of the trier of facts a firm
belief or conviction as to the facts sought to be established.” Lansdowne v. Beacon
Journal Publishing Co., 32 Ohio St.3d 176, 180-181, 512 N.E.2d 979 (1987), citing
Cross v. Ledford, 161 Ohio St. 469, 120 N.E.2d 118 (1954).
Former R.C. 2950.09(B)(3) set forth factors for a trial court to
consider when determining whether an offender should be classified as a sexual
predator. Those factors included the offender’s age and criminal record; the victim’s
age; whether the offense involved multiple victims; whether the offender used drugs
or alcohol to impair the victim; whether the offender has previously been convicted
of any criminal offense; whether the offender participated in any available program
for sex offenders; whether the offender demonstrated a pattern of abuse or displayed
cruelty toward the victim; any mental illness or disability of the offender; and any
other behavioral characteristics that contribute to the sex offender’s conduct. See
former R.C. 2950.09(B)(3)(a)-(j). Although the court must consider the factors set
forth in former R.C. 2950.09(B), it is not required to make an individual assessment
of those factors, nor is one factor or any combination of factors dispositive. Kahn,
8th Dist. Cuyahoga No. 104360, 2017-Ohio-4067, at ¶ 28, citing State v. Caraballo,
8th Dist. Cuyahoga No. 89757, 2008-Ohio-2046.
Talani’s overarching argument is that he is innocent of the crimes for
which he was convicted. During the sexual predator classification hearing and in his
appellate brief, Talani asserts his innocence for the crimes of which the jury
convicted him in CR-94-313066-ZA. In the sexual offender evaluation report, he
claims that he is innocent for all offenses, including the offenses of which he plead
guilty in CR-88-225344-ZA. This court has already affirmed Talani’s convictions in
CR-94-313066-ZA, and his convictions are not before us on appeal. Talani, 8th Dist.
Cuyahoga No. 68750, 1996 Ohio App. LEXIS 60.
Talani argues that the trial court erroneously determined that
R.C. 2950.09(B)(3)(f) requires him to participate in every available sex offender
program. He maintains that he chose not to participate in the recommended, but
non-mandatory, programming because he did not sexually abuse anyone, and he
should not be punished for disagreeing with the jury that convicted him. Former
R.C. 2950.09(B)(3)(f) includes as a factor “whether the offender participated in
available programs for sexual offenders.” The trial court heard evidence that Talani
completed all mandatory sex offender programs but did not participate in any
additional, recommended programs. The trial court found that Talani completed no
programming in prison “other than mandatory sex offender programming.” The
trial court did not determine that Talani was required to participate in every
available program, and the trial court’s consideration of whether Talani
“participated in available program for sexual offenders” was consistent with
R.C. 2950.09(B)(3)(f).
Talani further argues that his Static-99R score of negative two shows
that he is unlikely to reoffend. Factors considered on the Static-99R include prior
sexual offenses, victim characteristics, and the perpetrator’s age. The sexual
offender evaluation report explains that Talani’s 1988 and 1994 charges for sexual
offenses were an “index cluster” and were “brought forward” to the 1994 conviction.
The Static-99R Coding Rules, which the state entered into evidence at the sexual
classification hearing, describes index clusters as follows:
An offender may commit a number of sex offences in different
jurisdictions, over a protracted period, in a spree of offending prior to
being detected or arrested. Even though the offender may have a
number of sentencing dates in different jurisdictions, the subsequent
charges and convictions would constitute an index cluster. These
“spree” offences would group together – the early ones would not be
considered “priors” and the last, the “index” - they all become the index
cluster. This is because the offender has not been “caught” for the
earlier offences [sic] and then “chosen” to reoffend in spite of the
detection. Furthermore, historical offences that are detected after the
offender is convicted of a more recent sex offence would be considered
part of the index offence (pseudo-recidivism) and become part of the
index cluster[.]
***
For two offences to be considered separate offences, the second offence
must have been committed after the offender was detected (i.e.,
arrested or charged) and/or sanctioned for the previous offence. For
example, a sex offence committed while an offender was released on
bail for a previous sex offence would supersede the previous charge and
become the index offence. This is because the offender knew he had
been detected for his previous crimes but chose to reoffend anyway.
Here, Talani committed sexual offenses in 1983 and 1988. Only after
he was charged and sentenced for the 1988 offenses was he charged and convicted
of the 1983 offenses. Therefore, the offenses from 1983 and 1988 together
constituted the index cluster, and Talani received no points for prior sex offenses.
Talani scored one point for “unrelated victims” and negative three points for being
over age 60. Talani’s Static-99R score was therefore negative two, and his risk of
recidivism “very low.” The sexual offender evaluation report notes that the Static-
99R “does not measure all relevant risk factors[,] and Mr. Talani’s recidivism risk
may be higher or lower than that indicated by Static-99R based on factors not
included in this risk tool.”
Talani contends that the Static-99R is a valuable tool that should be
considered as evidence that he should not be designated a sexual predator. Talani
points to State v. Eppinger, 91 Ohio St.3d 158, 163, 743 N.E.2d 881, 2001-Ohio-247,
in which the Ohio Supreme Court stated that “the evidence presented by a
psychologist, psychiatrist, or other expert in the field of predicting future behavior
may be the best tool available to the court to assist it in making these
determinations.” He also relies on State v. Pierce, 8th Dist. Cuyahoga No. 88470,
2007-Ohio-3665, ¶ 20, in which this court acknowledged the “inconsistent
application of the predator label.” Talani further identifies cases in which this court
has accepted the Static-99R to support a finding under R.C. 2950.09: State v.
Durant, 2017-Ohio-8482, 99 N.E.3d 1217 (8th Dist.); State v. Dooley, 8th Dist.
Cuyahoga No. 84206, 2005-Ohio-628; State v. Ford, 8th Dist. Cuyahoga No. 83683,
2004-Ohio-3293; State v. Hardges, 8th Dist. Cuyahoga No. 88126, 2007-Ohio-
1158; Pierce, 8th Dist. Cuyahoga No. 88470, 2007-Ohio-3665.
The state argues that this court has questioned the utility of the Static-
99 assessment, citing to State v. Ellison, 8th Dist. Cuyahoga No. 78256, 2002-Ohio-
4024 and State v. Gray, 8th Dist. Cuyahoga No. 100492, 2014-Ohio-3139. In
Ellison, this court held that “[t]he STATIC-99 cannot purport to make an
individualized assessment of future conduct any more than a life expectancy table
can provide a[n] accurate prediction of a particular individual’s longevity.” Ellison
at ¶ 9. In Ellison, this court affirmed the trial court’s sexual-predator classification
and stated that the trial court “was not obligated to give the psychological report any
great weight.” Id. In Gray, we stated that “while the trial court could consider
the Static-99 results, it was not required to defer to those results when weighing the
statutory factors.” Gray at ¶ 19; see also State v. Purser, 153 Ohio App.3d 144,
2003-Ohio-3523, 791 N.E.2d 1053, ¶ 42 (8th Dist.) (“psychological tests designed to
indicate a sexual offender’s propensity to reoffend, and the resulting risk level, must
* * * not be blindly relied upon.”).
Although the Static-99R favors Talani in this case, we nonetheless
cannot ignore the other factors that are present and upon which the trial court relied
in reaching its determination. “The trial court may place as much or as little weight
on any of the factors as it chooses; the test is not a balancing one. Nor does the trial
court have to find the majority of the factors to be applicable to the defendant in
order to conclude the defendant is a sexual predator.” State v. Butler, 8th Dist.
Cuyahoga No. 86554, 2006-Ohio-4492. Like any other factor, the weight a court
gives to a Static-99 assessment is within the court’s discretion. We cannot substitute
our judgment for that of the trial judge. State v. Blake-Taylor, 8th Dist. Cuyahoga
No. 100419, 2014-Ohio-3495, ¶ 12.
In reviewing the record here, the trial court adhered to the statutory
requirements and considered the relevant factors enumerated in
R.C. 2950.09(B)(3). The court considered the evidence and testimony presented as
well as the arguments of counsel. The trial court found relevant to its determination
the number and ages of Talani’s victims (three victims, ages 4, 8, and 9 years old);
his criminal history and multiple convictions for sexual offenses; his refusal to
complete recommended sex offender training; and his pattern of abuse and threats
of cruelty. Despite Talani’s age and Static-99R score, the record demonstrates that
the trial court was presented with competent, credible evidence to support its
ultimate determination that Talani is a sexual predator as contemplated by
R.C. 2950.01(E). Our review reflects that the trial court’s decision was supported by
the manifest weight of the evidence.
Accordingly, we overrule Talani’s assignment of error.
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 be sent to said 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.
MARY J. BOYLE, PRESIDING JUDGE
SEAN C. GALLAGHER, J., and
RAYMOND C. HEADEN, J., CONCUR