State v. Black

2019 Ohio 444

• Court: Ohio Court of Appeals
• Decided: February 11, 2019
• Docket: CA2018-04-072
• Status: Published

Opinion

[Cite as State v. Black, 2019-Ohio-444.]

IN THE COURT OF APPEALS

TWELFTH APPELLATE DISTRICT OF OHIO

BUTLER COUNTY

STATE OF OHIO, :

Appellee, : CASE NO. CA2018-04-072

: OPINION - vs - 2/11/2019 :

ERIC BLACK, :

Appellant. :

CRIMINAL APPEAL FROM BUTLER COUNTY COURT OF COMMON PLEAS Case No. CR2007-07-1270

Michael T. Gmoser, Butler County Prosecuting Attorney, John C. Heinkel, Government Services Center, 315 High Street, 11th Floor, Hamilton, Ohio 45011, for appellee

Christopher P. Frederick, 300 High Street, Suite 550, Hamilton, Ohio 45011, for appellant

HENDRICKSON, J.

{¶ 1} Appellant, Eric Black, appeals from a decision of the Butler County Court of

Common Pleas classifying him as a sexual predator. For the reasons set forth below, we

affirm the trial court's decision.

{¶ 2} On September 5, 2007, appellant was indicted on two counts of importuning in

violation of R.C. 2907.07(A), felonies of the fourth degree; one count of gross sexual

imposition in violation of R.C. 2907.05(A)(4), a felony of the third degree; four counts of rape Butler CA2018-04-072

in violation of R.C. 2907.02(A)(1)(b), felonies of the first degree; and five counts of

compelling prostitution in violation of R.C. 2907.21(A), felonies of the third degree. The

charges arose out of allegations that appellant had engaged in sexual contact and conduct

with the minor victim, C.W., starting in 1997, when C.W. was six or seven years old and

continuing until she was more than ten years old. With respect to the compelling prostitution

charges, appellant was alleged to have engaged in sex with the minor victim, C.R., during

2006-2007, while C.R. was 16 years old, each time paying C.R. with cocaine and cash.

{¶ 3} On February 4, 2008, appellant pled guilty to all charges in exchange for the

state recommending an agreed ten-year prison sentence. The trial court accepted

appellant's plea and imposed the ten-year sentence. The trial court also classified appellant

a Tier III sex offender under S.B. 10, Ohio's version of the Adam Walsh Act.1

{¶ 4} Appellant directly appealed his conviction and sentence, and his appeal was

dismissed pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396 (1967). See State v.

Black, 12th Dist. Butler No. CA2008-03-073, 2008-Ohio-6382.

{¶ 5} Thereafter, appellant completed his prison sentence and was released on

postrelease control. Shortly after his release, the state filed a motion to conduct a sexual

predator hearing and to have appellant reclassified pursuant to Megan's Law, in accordance

with this court's decision in State v Bell, 12th Dist. Clermont No. CA2015-10-077, 2016-Ohio-

7363. The trial court granted the state's motion and ordered appellant to be forensically

1. In 1996, the General Assembly enacted Am.Sub.H.B. 180 (Megan's Law), which amended the state's sex offender registration process. Megan's Law became effective in 1997. In 2007, the General Assembly enacted Am.Sub.S.B. 10, which repealed Megan's Law and replaced it with Ohio's version of the Adam Walsh Act (AWA). S.B. 10 eliminated the categories of "sexually oriented offender," "habitual sex offender" and "sexual predator" under Megan's Law and replaced them with a three-tiered classification system. However, in State v. Williams, 129 Ohio St.3d 344, 2011-Ohio-3374, the Ohio Supreme Court held that defendants who committed sex offenses prior to the July 1, 2007 enactment of the AWA cannot be classified under the AWA. Rather, the defendants must be classified under the law in effect at the time they committed the sex offenses. Williams at ¶ 22-23. As appellant committed his sex offenses over a span of years between May 1997 and March 2007, he was required to be classified under Megan's Law, and not the AWA. See, e.g., State v. McGlosson, 12th Dist. Butler No. CA2013-05-082, 2014-Ohio-1321, ¶ 2-4, fn. 1 and 2. -2- Butler CA2018-04-072

evaluated by Dr. Bobbie Hopes, a forensic psychologist. Appellant was evaluated by Dr.

Hopes on February 1, 2018, and Dr. Hopes submitted a written Sex Offender Report to the

court.

{¶ 6} A reclassification hearing was held on February 27, 2018. No testimony was

presented at the hearing. However, pursuant to a stipulation by the parties, Dr. Hopes' report

was admitted as an exhibit. Upon reviewing Dr. Hopes' report, the trial court classified

appellant as a sexual predator under Megan's Law and advised him of his reporting

requirements.

{¶ 7} Appellant timely appealed, raising the following assignment of error:

{¶ 8} THE TRIAL COURT ERRED IN CLASSIFYING [APPELLANT] AS A SEXUAL

PREDATOR.2

{¶ 9} In his sole assignment of error, appellant contends the trial court erred when it

classified him as a sexual predator as the state failed to present clear and convincing

evidence that he is likely to engage in one or more sexually-oriented offenses in the future.

Appellant argues he should not have been classified a sexual predator as he did not have

any prior convictions for violent or sexual offenses and he tested only in the "moderate

range" for recidivism when examined by Dr. Hopes.

{¶ 10} "A trial court's determination in a sex-offender classification hearing held

pursuant to Megan's Law is reviewed under a manifest-weight-of-the-evidence standard."

State v. McGlosson, 12th Dist. Butler No. CA2013-05-082, 2014-Ohio-1321, ¶ 27, citing State

v. Wilson, 113 Ohio St.3d 382, 2007-Ohio-2202, ¶ 32. The state bears the burden of

2. The state contends appellant's appeal was untimely as his notice of appeal was not filed until after the court filed both the Judgment Entry Following Sexual Predator Hearing, dated February 27, 2018, and the Notice and Order of Duties to Register as an Offender of a Sexually Oriented/Child-Victim Oriented Offense, dated March 15, 2018. Because the court's Judgment Entry Following Sexual Predator Hearing contemplated further action by explicitly providing that the "duties to register and notification requirements" discussed at the hearing were to be set forth in a "separate entry," we find that appellant's April 12, 2018 notice of appeal of his sexual predator classification was timely. -3- Butler CA2018-04-072

demonstrating that an offender is a sexual predator by clear and convincing evidence. Bell,

2016-Ohio-7363 at ¶ 27. Clear and convincing evidence is evidence that "will produce in the

mind of the trier of facts a firm belief or conviction as to the facts sought to be established."

Id., citing Stat v. Wyant, 12th Dist. Madison No. CA2003-08-029, 2004-Ohio-6663, ¶ 42.

{¶ 11} According to the version of Megan's Law in effect at the time of appellant's

crimes, a sexual predator is a person who has been convicted of, or has pled 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. 2050.01(E); State v. Eppinger, 91 Ohio St.3d 158,

163 (2001). In determining whether an offender should be classified as a sexual predator,

the trial court is required to consider all relevant factors, including but not limited to (1) the

offender's age, (2) the offender's prior criminal record, (3) the victim's age, (4) whether

multiple victims were involved, (5) whether drugs or alcohol were used to impair the victim,

(6) whether the offender has a mental illness or mental disability, (7) the nature of the

offender's sexual contact with the victim and whether it was part of a pattern of abuse, (8)

whether the offender displayed cruelty or made threats of cruelty, and (9) any additional

behavioral characteristics that contribute to the offender's conduct. Former R.C. 2950.09(B);

McGlosson at ¶ 28; State v. Black, 12th Dist. Butler No. CA2002-04-082, 2003-Ohio-2115, ¶

11.

{¶ 12} "The trial court 'has discretion to determine what weight, if any, it will assign to

each factor.'" McGlosson at ¶ 29, quoting Wilson, 2007-Ohio-2202 at ¶ 19. Further, "[t]he

trial court is not required to find that the evidence presented supports a majority of the factors

listed in former R.C. 2950.09(B), and may rely upon one factor more than another, depending

upon the circumstances of the case." Bell at ¶ 26.

{¶ 13} Having thoroughly reviewed the record, we find that the trial court's

classification of appellant as a sexual predator is supported by clear and convincing -4- Butler CA2018-04-072

evidence, most significantly Dr. Hopes' report. In determining that appellant was a sexual

predator, the court noted that although Dr. Hopes found that appellant's risk of recidivism was

moderate, several significant factors under former R.C. 2950.09(B) increased his risk of

recidivism. These factors included the fact that there were multiple underage victims; there

was a pattern of abuse; drugs had been supplied by appellant to the older victim; appellant

took only a surface level of responsibility for his wrongdoing and continued to place blame on

his victims; and appellant failed to complete a long-term sex offender treatment program

despite being incarcerated for ten years.

{¶ 14} In looking at appellant's offenses, Dr. Hopes noted that the nature of appellant's

conduct with his minor victims constituted a pattern of abuse that "significantly increase[d] his

risk of recidivism." Appellant's youngest victim, C.W., was only six or seven when the sexual

misconduct began and the sexual abuse lasted for a period of three or four years. Appellant

engaged in sexual conduct with C.W. two or three times a month and he paid C.W. with cash

after committing the sexual acts. Appellant was approximately 25 years old when his sexual

abuse of C.W. began. As for appellant's sexual conduct with C.R., Dr. Hopes noted that

appellant sometimes used drugs to impair his 16-year-old victim. Appellant engaged in oral

and vaginal sex with C.R. on multiple occasions over a period of several months when he

was approximately 34 years old, paying for the sex acts with cash and drugs.

{¶ 15} In her written report, Dr. Hopes noted that she had conducted both an actuarial

risk assessment and a clinical risk assessment of appellant. Appellant's score on the Static-

99, an "instrument designed to assist in the prediction of sexual and violent recidivism for sex

offenders," placed appellant in the low to moderate risk category. Dr. Hopes' report stated

that because the Static-99 relies on group data, an individual sex offender's risk of recidivism

may be higher or lower than the probabilities estimated in the Static-99 test, depending upon

-5- Butler CA2018-04-072

the other risk factors not measured by the instrument.3 With regard to appellant, Dr. Hopes

identified a number of other risk factors that, as Dr. Hopes opined, created a "moderate

likelihood of [appellant] committing another sexually oriented offense in the future." For

instance, although appellant had been incarcerated for ten years for committing the

aforementioned sex offenses, he completed only a mandatory 30-day sex offender class

when he was first sent to prison. He never completed a voluntary long-term sex offender

treatment program while imprisoned.

{¶ 16} Additionally, appellant's lack of genuine remorse for his offenses, his failure to

accept full responsibility for his actions, and his tendency to place blame on his victims

increased his likelihood of recidivism. Although appellant expressed some regret for his

actions, Dr. Hopes noted that "his regret for his offenses is almost entirely self-centered."

More than ten years after the offenses were committed, appellant continued to place blame

for his actions on his victims – claiming that C.R. presented herself as an 18-year-old before

the sex offenses occurred and that C.W. was "real fast when she was young" and "act[ed]

older than what she really was." With respect to C.W., appellant attempted to minimalize his

wrongdoing, claiming that the sexual contact and conduct only happened "two or three times"

the entire time he knew C.W., rather than multiple times over the course of three or four

years, as reported by C.W. and as appellant pled guilty to in 2008. When asked by Dr.

Hopes how his behavior may have affected C.W., appellant's response indicated his belief

that the child-victim was also at fault for the wrongdoing. Appellant stated, "I know I was

somebody that [C.W.] trusted. I know I hurt her. She sent me money. We talked. She said

she forgive [sic] me. And I forgive her. I'm not mad at her. She was hurt. I'm hurt." The trial

3. In addition to the Static-99, Dr. Hopes also tested appellant using the Static 2002, which she described as an "updated version of the original test." Appellant's score on the Static 2002 placed him in the moderate risk category. -6- Butler CA2018-04-072

court was clearly troubled by appellant's failure to take responsibility for his actions. The

court noted that appellant's admission of wrongdoing was merely "a surface shallow kind of

admission" as appellant continued to indicate the victims played a large role in the

commission of the offenses.

{¶ 17} Given the evidence in the record, we find that the trial court did not err in

determining that appellant is a sexual predator. Clear and convincing evidence supports the

trial court's decision to classify appellant as a sexual predator. Further, to the extent that

appellant contends the trial court in some way "admitted that it was not firmly convinced that

[appellant] would likely re-offend" at the sexual predator hearing, we find no merit to his

argument. At the hearing, the trial court clearly stated, "I find that the evidence has

convinced me, it's been clear and convincing evidence as submitted in the report of Dr.

Hopes, that you are likely to reengage in this kind of behavior in sexually oriented offenses in

the future." The court then journalized its finding in its February 27, 2018 Judgment Entry

Following Sexual Predator Hearing. Accordingly, for the reasons set forth above, we

overrule appellant's sole assignment of error.

{¶ 18} Judgment affirmed.

S. POWELL, P.J., and RINGLAND, J., concur.

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