State v. Fashbaugh, Unpublished Decision (2-8-1999) ( 1999 )

On March 19, 1995, appellant, Eric Fashbaugh, pled to a bill of information charging him with one count of sexual battery with a physical harm specification in violation of R.C.2907.03(A) and R.C. 2941.143. Said charge arose from incidents involving appellants juvenile stepdaughter. By judgment entry filed April 4, 1995, the trial court sentenced appellant to an indeterminate term of four to ten years in prison.

On August 27, 1997, a hearing was held to determine appellants status pursuant to the Sex Offender Registration Act, R.C. Chapter 2950. By judgment entry filed September 2, 1997, the trial court classified appellant as a "sexual predator."

Appellant filed a notice of appeal and this matter is now before this court for consideration. Assignments of error are as follows:

I

THE TRIAL COURT ERRED IN OVERRULING APPELLANTS MOTION TO DISMISS THE HOUSE BILL 180 (HEREINAFTER H.B. 180) PROCEEDINGS AGAINST HIM ON EX POST FACTO GROUNDS.

II

THE TRIAL COURT ERRED IN OVERRULING APPELLANTS MOTION TO DISMISS THE H.B. 180 PROCEEDINGS AGAINST HIM ON RETROACTIVE APPLICATION GROUNDS.

III

THE TRIAL COURT ERRED IN OVERRULING APPELLANTS MOTION TO DISMISS THE H.B. 180 PROCEEDINGS AGAINST HIM ON DOUBLE JEOPARDY GROUNDS.

IV

THE TRIAL COURT ERRED IN OVERRULING APPELLANTS MOTION TO DISMISS BECAUSE H.B. 180 IS UNCONSTITUTIONALLY VAGUE.

V

THE TRIAL COURT ERRED IN CLASSIFYING APPELLANT AS A PREDATOR WITHOUT A RECORD OF CLEAR AN CONVINCING EVIDENCE TO SUPPORT THE FINDING.

I, II, III, IV This court has previously reviewed these arguments inState v. Royce Albaugh (February 1, 1999), Stark App. Nos. 1997CA00167 and 1997CA00222, unreported, State v. Earl Bair (February 1, 1999), Stark App. No. 1997CA00232, unreported, andState v. Frederick A. Mclntyre (February 1, 1999), Stark App. No. 1997CA00366, unreported. We hereby adopt and incorporate the corresponding assignments of error from these opinions herein.

Assignments of Error I, II, III and IV are denied.

V Appellant argues the trial court's classification was inconsistent with the "clear and convincing evidence" standard of R.C. 2950.09(B)(3). We disagree.

In State v. Cook (1998), 83 Ohio St.3d 404, the Supreme Court of Ohio determined R.C. Chapter 2950 is remedial in nature and not punitive. As such, we will review this assignment of error under the standard of review contained in C.E. Morris Co. v.Foley Construction (1978), 54 Ohio St.2d 279. We find this to be the applicable standard as the Cook court addressed a similar challenge under a manifest weight standard of review. See, Cook at 426.

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." R.C. 2950.09(B)(2) sets forth the relevant factors a trial court is to consider in making its determination:

(2) In making a determination under divisions (B)(1) and (3) of this section 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, including, but not limited to, all sexual offense;

(c) The age of the victim of the sexually oriented offense for which sentence is to be imposed;

(d) Whether the sexually oriented offense for which sentence is to be imposed 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.

In its judgment entry of September 2, 1997, the trial court did consider the above factors. The trial court noted this case involved a victim under the age of thirteen. The trial court also noted appellant's conduct took place over an extended period of time. The bill of information filed March 10, 1995 indicates appellant engaged in a continuing course of conduct from June 27, 1992 to June 27, 1994. In its judgment entry, the trial court found appellant performed oral sex "on the victim along with oral sex being performed on the perpetrator." The trial court noted appellant was the stepfather of the victim and "took advantage of this relationship by grooming this victim and by using mental cruelty toward her to not disclose the sexual abuse." The trial court found "with all of the characteristics he has that he would be a likelihood of a repeat offender." T. at 40. Based upon the above factors, the trial court concluded appellant should be classified as a "sexual predator" as defined in R.C. 2950.01 (E).

Based upon our review of the record, we find the trial court's conclusion is supported by clear and convincing evidence and is not against the manifest weight of the evidence.

Assignment of Error V is denied.

The judgment of the Court of Common Pleas of Stark County, Ohio is hereby affirmed.

By Farmer, J., Wise, J. and Hoffman, J. concur.

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-------------------- JUDGES

For the reasons stated in the Memorandum-Opinion on file, the judgment of the Court of Common Pleas of Stark County, Ohio is affirmed.

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-------------------- JUDGES

Hon. John W. Wise, P.J., Hon. William B. Hoffman, J, Hon. Sheila G. Farmer, J., JUDGES.