State v. Lugo , 117 N.E.3d 870 ( 2018 )

[Cite as State v. Lugo, 2018-Ohio-2842.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 106219
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
ISRAEL D. LUGO
DEFENDANT-APPELLANT
JUDGMENT:
REVERSED AND REMANDED
Criminal Appeal from the
Cuyahoga County Court of Common Pleas
Case Nos. CR-16-610725-B and CR-17-614446-A
BEFORE: S. Gallagher, J., E.A. Gallagher, A.J., and Stewart, J.
RELEASED AND JOURNALIZED: July 19, 2018
ATTORNEY FOR APPELLANT
Erin R. Flanagan
Erin R. Flanagan, Esq., Ltd.
75 Public Square, Suite 920
Cleveland, Ohio 44113
ATTORNEYS FOR APPELLEE
Michael C. O’Malley
Cuyahoga County Prosecutor
By: Denise J. Salerno
Daniel T. Van
Assistant Prosecuting Attorneys
Justice Center — 9th Floor
1200 Ontario Street
Cleveland, Ohio 44113
SEAN C. GALLAGHER, J.:
{¶1} Israel Lugo appeals his being classified as a sexual predator under the version of
R.C. 2950.09 in effect at the time of the offense. He appeals no other aspect of his convictions
for rape and the unrelated vehicular manslaughter.
{¶2} According to the prosecutor, in 2004, the victim blacked out from her voluntary, but
excessive, consumption of alcohol or drugs. She awoke in the backseat of her locked car the
next morning wearing nothing but a sweatshirt. A condom wrapper was found on the
floorboard. Unable to recall the events of the previous evening, the victim immediately sought
medical attention, during which time DNA evidence was preserved.
{¶3} The DNA was eventually tested, and Lugo was identified.
{¶4} Lugo pleaded guilty to rape under R.C. 2907.02(A)(1)(c), in which an offender is
prohibited from engaging in sexual conduct with another when the offender knows the other
person’s ability to resist or consent is substantially impaired because of mental or physical
condition. Lugo told investigators that he does not recall the encounter because he was under
the influence of alcohol and drugs at the time.
{¶5} Former R.C. Chapter 2950, known as “Megan’s Law,” created three classifications
for sexual offenders: sexually oriented offender, habitual sex offender, and sexual predator. The
state concedes that the second classification, habitual sex offender, does not apply in this case.
Former R.C. 2950.01(E) defined 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.” In making a sexual predator determination, the trial
court was required to consider all relevant factors, including, but not limited to the factors listed
in former R.C. 2950.09(B)(2):
(a) The offender’s age;
(b) The offender’s prior criminal record regarding all offenses, including, but not
limited to, all sexual offenses;
(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.
A trial court’s sexual predator determination must be based on clear and convincing evidence.
Former R.C. 2950.09(B)(3). State v. Boyce, 8th Dist. Cuyahoga No. 105532, 2018-Ohio-168, ¶
11.
{¶6} In State v. Eppinger, 91 Ohio St.3d 158, 2001-Ohio-247, 743 N.E.2d 881, the
Supreme Court of Ohio set forth the model procedure for a classification hearing. Boyce at ¶ 12.
As applicable to the current case, when conducting the hearing, 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); State v. Russell, 8th Dist. Cuyahoga No. 73237, 1999 Ohio App. LEXIS
1579 (Apr. 8, 1999); and State v. Casper, 8th Dist. Cuyahoga Nos. 73061, 73062, 73063, and
73064, 1999 Ohio App. LEXIS 2617 (June 10, 1999). In order to assist the trial court in making
its determination, a hearing should be conducted to
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.
Eppinger at 166. “The standards suggested in Eppinger for trial courts to follow were designed
to ‘aid the appellate courts in reviewing the evidence on appeal and ensur[ing] a fair and
complete hearing for the offender.’” Boyce at ¶ 12, quoting Eppinger at 167.
{¶7} No separate classification hearing was conducted in this case. The state sought to
have Lugo classified as a sexual predator at his sentencing hearing on the underlying crimes.
Although nothing precludes the trial court from conducting a classification hearing in this
manner, in this case the prosecutor was limited to presenting her understanding of the events
underlying the crime. The victim did not testify or prepare an impact statement for the trial
court’s consideration, no presentence investigation report was expressly considered (the only
report included in the record came from Lorain County with respect to a previous criminal
nonsupport case), and no expert testimony was presented to assist the court in determining that
the offender is likely to engage in one or more sexually oriented offenses in the future. Eppinger
at 166. The state only presented a psychological evaluation report that indicated an “average”
likelihood of recidivism, which is considered to be near the bottom end of the recidivism scale,
and Lugo’s criminal history involving non-sex-related offenses.
{¶8} The state bears the burden to prove that an offender is a sexual predator by clear and
convincing evidence. State v. Wilson, 113 Ohio St.3d 382, 2007-Ohio-2202, 865 N.E.2d 1264, ¶
20. “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., quoting Cross v.
Ledford, 161 Ohio St. 469, 120 N.E.2d 118 (1954), paragraph three of the syllabus. In this case,
the state presented an argument in support of that evidentiary standard:
The State is going to request that this court find the defendant to be a sexual
predator based upon his criminal record. As the court would notice in the House
Bill 180 psychological evaluation, the defendant has a criminal record in excess of
30 cycles. That’s pretty extensive for this case, and it’s one of the factors taken
into consideration for finding a defendant to be a sexual predator. Other factors
that this court can consider that would support him being a sexual predator is the
fact that this victim was so intoxicated, she had to be carried out of a bar and yet
somebody still preyed on her, and she’s found in her own car with a condom
wrapper on the floor.
Tr. 30:23-31:14.
{¶9} The prosecutor’s argument as it pertained to the underlying conduct is not evidence,
much less clear and convincing evidence. There was no trial transcript or victim impact
statement to consider. In State v. Woolridge, 8th Dist. Cuyahoga No. 90113, 2008-Ohio-3066, a
similar argument in favor of the most severe classification was rejected in a case in which the
state failed to present anything other than argument at the hearing. Id. The prosecutor in
Woolridge “stated what he believed the facts of the case to be. He presented no witnesses, no
documents, no exhibits, nor any stipulation in support of his position; he merely argued facts not
contained in the record.” Id. at ¶ 6. It was concluded that if the state solely relies on an
argument presented by counsel in favor of the sexual predator determination, the state fails to
sustain its burden of proof because arguments of counsel are not considered evidence. Id. at ¶
6-9. In such circumstances, the sexual predator determination should be reversed. Id.; see also
State v. Lee, 8th Dist. Cuyahoga No. 91285, 2009-Ohio-1787, ¶ 12-15.
{¶10} We must reiterate that although strict compliance with the model procedures for a
classification hearing discussed in Eppinger is not necessary, the limited discussion of the issue
at the sentencing hearing in this case was insufficient to enable appellate review. There are no
facts for consideration, and the evidence that was presented, in and of itself, does not
demonstrate a likelihood of recidivism. Any argument presented relating the state’s belief as to
the facts underlying the crime is not evidence for consideration.
{¶11} Further, we cannot consider the state’s alternative argument regarding Lugo’s
criminal history as support of the sexual predator classification. Although an offender’s
criminal history of non-sex-related offenses must be considered and may be sufficient to tip the
scales in favor of the most severe classification when coupled with other factors, it is insufficient
standing alone to demonstrate by clear and convincing evidence that the offender is likely to
engage in a sex offense in the future. There is no evidence demonstrating a connection between
Lugo’s non-sex-related criminal history and the likelihood of sexual-related recidivism, and in
fact, the psychological evaluation produced by the state’s expert indicates a low-tier likelihood of
recidivism based on that consideration.
{¶12} In addition, the state’s reliance on the nature of the underlying crime in support of
the likelihood of recidivism is misplaced. As the Ohio Supreme Court has cautioned,
“[a]lthough certainly even one sexually oriented offense is reprehensible and does great damage
to the life of the victim, R.C. Chapter 2950 is not meant to punish a defendant, but instead, ‘to
protect the safety and general welfare of the people of this state.’” Eppinger, 91 Ohio St.3d at
165, 2001-Ohio-247, 743 N.E.2d 881, quoting R.C. 2950.02(B). Courts cannot adjudicate all
sexual offenders as sexual predators, because doing so would undermine the purposes behind the
reporting requirement. If every sex offense led to high-risk reporting, the community risks
“‘being flooded with a number of persons who may or may not deserve to be classified as
high-risk individuals, with the consequence of diluting both the purpose behind and the
credibility of the law.’” Id., quoting Thompson, 140 Ohio App.3d 638, 748 N.E.2d 1144 (8th
Dist.1999).
{¶13} The “legislature would never have provided for a hearing if it intended for one
conviction to be sufficient.” Id.; State v. Ward, 130 Ohio App.3d 551, 561, 720 N.E.2d 603 (8th
Dist.1999) (the classification statute is not written to be a “one strike” system). Without
evidence demonstrating the nature of this particular offense, the generic commission of the crime
cannot be considered a dispositive factor. If the legislature had intended for a single violation of
R.C. 2907.02(A)(1)(c) to be the basis of a sexual predator classification, the statutes could have
been drafted accordingly.
{¶14} As a result of the foregoing, we reverse and remand. Upon remand, the trial
court shall conduct a proper sexual offender classification hearing in accordance with Eppinger
and with full consideration of all the factors enumerated in former R.C. 2950.09(B)(2).
It is ordered that appellant recover from appellee 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.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the
Rules of Appellate Procedure.
SEAN C. GALLAGHER, JUDGE
EILEEN A. GALLAGHER, A.J., and
MELODY J. STEWART, J., CONCUR