State v. Devore , 2015 Ohio 3856 ( 2015 )

[Cite as State v. Devore, 2015-Ohio-3856.]
COURT OF APPEALS
ASHLAND COUNTY, OHIO
FIFTH APPELLATE DISTRICT
JUDGES:
STATE OF OHIO : Hon. W. Scott Gwin, P.J.
: Hon. Sheila G. Farmer, J.
Plaintiff-Appellee : Hon. Patricia A. Delaney, J.
:
-vs- :
: Case No. 15-COA-007
JEFFREY M. DEVORE :
:
Defendant-Appellant : OPINION
CHARACTER OF PROCEEDING: Criminal appeal from the Ashland County
Court of Common Pleas, Case No. 07-CRI-
092
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: September 21, 2015
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
CHRISTOPHER TUNNELL MATTHEW MALONE
Ashland County Prosecutor 10 East Main Street
GARY D. BISHOP Ashland, OH 44805
Assistant County Prosecutor
110 Cottage Street, Third Floor
Ashland, OH 44805
[Cite as State v. Devore, 2015-Ohio-3856.]
Gwin, P.J.
{¶1} Appellant, Jeffrey M. DeVore ["DeVore"] appeals from the January 10,
2015 Judgment Entry of the Ashland County Court of Common Pleas designating him
as a sexual predator.
Facts and Procedural History
{¶2} On December 13, 2007, DeVore was charged by bill of information in the
Ashland County, Ohio Court of Common Pleas with one count of abduction in violation
of R.C. 2905.02(A)(2), one count of attempted gross sexual imposition in violation of
R.C. 2923.02(A) and R.C. 2907.05(A)(4), and one count of public indecency in violation
of RC, 2907.09(A)(2). All counts stem from an incident that occurred on August 30,
2007, involving a minor victim later identified as B.R.
{¶3} On December 17, 2007, DeVore pled guilty to all counts contained in the
bill of information. The trial court ordered DeVore undergo a standard pre-sentence
investigation and a forensic examination of his amenability to sex offender treatment
and evaluation of risk factors. Dr. Dale Rupple evaluated DeVore and submitted his
report to the trial court on January 11, 2008. Dr. Rupple's report indicated that DeVore
presented with a moderate-to-high risk to reoffend.
{¶4} On February 7, 2008, the trial court sentenced DeVore to five (5) years in
prison on count one, abduction; to eighteen (18) months in prison on count two,
attempted gross sexual imposition, and to sixty (60) days in jail on count three, public
indecency. The prison terms on counts one and two were ordered to be served
consecutively, while the jail term was ordered to be served concurrently to counts one
and two. The trial court also ordered DeVore to serve five (5) years of post-release
Ashland County, Case No. 15-COA-007 3
control. Finally, the trial court classified DeVore as a Tier II sex offender under the
Adam Walsh Act.
{¶5} While DeVore was in prison, the Ohio Supreme Court held in State v.
Williams, 129 Ohio St. 3d 344, 2011-Ohio-3374, 952 N.E.2d 1108 (2011), that the Adam
Walsh Act could not be applied retroactively to offenders who committed their
underlying sex offenses before January 1, 2008.
{¶6} In July of 2014, DeVore was released from prison. In September of 2014,
due to the holding in Williams, the state filed a motion to conduct a sex offender
classification hearing.
{¶7} On January 12, 2015, the trial court held a classification hearing for
DeVore pursuant to former R.C. Chapter 2950 ("Megan's Law"). The state relied on the
presentence investigation and forensic report from 2008, as well as the testimony of
Detective Scott Smart, who testified regarding a 2007 interview with DeVore, DeVore
testified on his own behalf and submitted a 2015 sex offender assessment. The state
argued that DeVore should be classified as a sexual predator, while DeVore argued that
he should be classified as a sexually oriented offender. By Judgment Entry filed January
10, 2015, the trial court issued a written decision classifying DeVore as a sexual
predator.
Assignment of Error
{¶8} Devore raises one assignment of error,
{¶9} "I. THE COURT OF COMMON PLEAS OF ASHLAND COUNTY, OHIO,
ERRED BY CLASSIFYING DEFENDANT-APPELLANT AS A SEXUAL PREDATOR."
Ashland County, Case No. 15-COA-007 4
Analysis
{¶10} In his first assignment of error, Devore contends that the trial court erred
by classifying him as a Sexual Predator following a classification hearing conducted
pursuant to former R.C. Chapter 2950 ("Megan's Law). DeVore further alleges that the
manifest weight of the evidence is insufficient to find, by clear and convincing evidence,
that he is "likely to engage in the future in one or more sexually oriented offenses".
{¶11} On June 3, 2010 the Ohio Supreme Court decided State v. Bodyke, 126
Ohio St. 3d 266, 2010–Ohio–2424, 933 N.E.2d 753. In Bodyke, the Court concluded that
R.C. 2950.031 and R.C. 2950.032, which require the attorney general to reclassify sex
offenders whose classifications have already been adjudicated by a court and made the
subject of a final order, violated the separation of powers doctrine by requiring the
opening of a final judgment. The Bodyke court concluded that R.C. 2950.031 and R.C.
2950.032 “may not be applied to offenders previously adjudicated by judges under
Megan's Law, and the classifications and community-notification and registration order
imposed previously by judges are reinstated.” Bodyke at ¶ 66.
{¶12} Under Megan's Law, R.C. Chapter 2950 defines three classifications of
sex offenders: sexual predators, habitual sexual offenders, and sexually oriented
offenders. R.C. 2950.09; State v. Cook, 83 Ohio St. 3d 404, 407, 1998-Ohio-291, 700
N.E.2d 570(1998). To earn the most severe designation of sexual predator, the
defendant must have been convicted of or pled guilty to committing a sexually oriented
offense and must be “likely to engage in the future in one or more sexually oriented
offenses.” R.C. 2950.01(E).
Ashland County, Case No. 15-COA-007 5
{¶13} In making a determination as to whether an offender is a sexual predator,
the judge must consider all relevant factors, including, but not limited to, all of the
following: the offender's age; prior criminal record; the age of the victim of the sexually
oriented offense; whether the sexually oriented offense involved multiple victims;
whether the offender used drugs or alcohol to impair the victim or prevent the victim
from resisting; 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 sex offenders; any mental
illness or mental disability of the offender; the nature of the offender's sexual conduct
with the victim and whether that contact was part of a demonstrated pattern of abuse;
whether the offender, during commission of the offense, displayed cruelty or threatened
cruelty; and any additional behavioral characteristics that contribute to the offender's
conduct. R.C. 2950.09(B)(2)(a) through (j). Cook, 83 Ohio St. 3d at 407-408, 1998-Ohio-
291, 700 N.E.2d 570.
{¶14} The conclusion by the trial court that an offender is a sexual predator must
be supported by clear and convincing evidence. R.C. 2950.09(B)(3). The offender and
the prosecutor may appeal as a matter of right the judge's determination regarding
sexual predator status. Id. In addition, upon expiration of the applicable time period, an
offender who has been adjudicated a sexual predator may petition the court to obtain an
entry stating that the offender is no longer a sexual predator. R.C. 2950.09(D). Cook, 83
Ohio St. 3d at 408, 1998-Ohio-291, 700 N.E.2d 570.
Ashland County, Case No. 15-COA-007 6
{¶15} 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.”
Cross v. Ledford, 161 Ohio St. 469, 120 N.E.2d 118(1954), paragraph three of the
syllabus. To meet the clear-and-convincing standard requires a higher degree of proof
than “a preponderance of the evidence,” but less than “evidence beyond a reasonable
doubt.” State v. Ingram, 82 Ohio App. 3d 341, 346, 612 N.E.2d 454(1992).
{¶16} In State v. Wilson, the Ohio Supreme Court held,
Because sex-offender-classification proceedings under R.C.
Chapter 2950 are civil in nature, a trial court’s determination in a sex-
offender-classification hearing must be reviewed under a civil manifest-
weight-of-the-evidence standard and may not be disturbed when the
judge’s findings are supported by some competent, credible evidence.
113 Ohio St. 3d 382, 2007-Ohio-2202, 865 N.E.2d 1264, syllabus.
{¶17} Under the civil standard, examining the evidence underlying the trial
judge’s decision is a prerequisite to determining whether the trial court’s judgment is
supported by some competent, credible evidence. Wilson, 113 Ohio St. 3d 382, 2007-
Ohio-2202, 865 N.E.2d 1264,¶40.
{¶18} In the case at bar, the trial court reviewed all materials of record in this
matter, including but not limited to the District V Forensic Diagnostic Center Assessment
and the Presentence Investigation Report previously submitted to the Court, and all
testimony and documentary evidence submitted during the classification hearing held
January 12, 2015.
Ashland County, Case No. 15-COA-007 7
{¶19} The trial court examined the factors listed in R.C. 2950.09(B)(3). The trial
court noted that the sexually deviant behavior DeVore exhibited occurred over three
counties an spanned 3 1/2 years. R.C. 2950.09(B)(3)(b); and that multiple individuals
have been victimized by DeVore's sexually deviant behavior. R.C. 2950.09(B)(3)(d).
Although the charged offenses involved a single seven year old girl, DeVore himself
admitted to driving through the Amish and Mennonite communities in Richland,
Ashland and Knox Counties looking for females whom he could expose himself to
and witness him masturbate. Thus, exhibiting a demonstrated pattern of abuse. R.C.
2950.09(B)(3)(h).
{¶20} The trial court also considered the age of the victim. R.C.
2950.09(B)(3)(c). DeVore kidnapped and drove a seven-year old child away from her
home and, ignoring her pleadings, made her remove her panties and fondled her pelvic
area. He also attempted to place her on his lap with his erect penis exposed, further
restraining her in the process, and attempted to masturbate with this panty less seven-
year-old girl positioned above his penis. He admitted the victim was upset and praying.
R.C. 2950.09(B)(3)(i). Further, Devore had been abusing marijuana when engaging in
sexually deviant behavior. R.C. 2950.09(B)(3)(j). Devore had "smoked pot" for almost
twenty years prior to committing these offenses. He had been previously convicted of
felony trafficking in marihuana.
{¶21} DeVore did not use drugs or alcohol to impair his victim. R.C.
2950.09(B)(3)(e). DeVore served the entirety of his sentence, which was six and a half
years. While incarcerated, DeVore participated in and completed a thirteen-week sex
offender treatment program. R.C. 2950.09(B)(3)(f). In addition, Dr. Rupple noted in his
Ashland County, Case No. 15-COA-007 8
2008 assessment several factors for reducing the risk of reoffending in DeVore's,
including, among others, age, substance abuse, employment history, and motivation.
{¶22} The trial court has significant discretion in evaluating factors that may be
relevant to its recidivism determination and such determinations are to be afforded great
deference. State v. Robertson, 147 Ohio App. 3d 94, 2002-Ohio-494, 768 N.E.2d
1207(3rd Dist.). The court has discretion to determine what weight, if any, it will assign
to each statutory guideline. State v. Thompson, 92 Ohio St. 3d 584, 2001-Ohio-1288,
752 N.E.2d 276. The trial court does not need to find a majority of the R.C.
2950.09(B)(3) factors to support a sexual predator determination; rather, an appellant
may be so adjudicated even if only one or two of the factors are present as long as the
totality of the circumstances provides clear and convincing evidence that the appellant
is likely to commit a sexually oriented offense in the future. State v. Murphy, 11 Dist.
Lake No.2003-L049, 2005-Ohio-412, ¶ 41.
{¶23} The Ohio Supreme Court in State v. Thompson, 92 Ohio St. 3d 584, 2001-
Ohio-1288, 752 N.E.2d 276 discussed the statutory factors and its ruling in State v.
Eppinger, 91 Ohio St. 3d 158, 2001-Ohio-247, 743 N.E.2d 881 and stated:
We find that the factors listed in R.C. 2950.09(B)(2) are guidelines
that serve an important function by providing a framework to assist judges
in determining whether a defendant, who committed a sexually oriented
offense, is a sexual predator. These guidelines provide consistency in the
reasoning process. Without such guidelines, judges would be left in
uncharted waters and decisions on whether a defendant was a sexual
Ashland County, Case No. 15-COA-007 9
predator could vary widely depending on a judge's own viewpoint on the
issue.
However, these guidelines do not control a judge's discretion. R.C.
2950.09(B)(2) requires a court to “consider all relevant factors including,
but not limited to, all of the following [factors].” This language requires the
court to “consider” the factors listed in R.C. 2950.09(B)(2), but does not
direct the court on what weight, if any, it must assign to each factor. Such
an interpretation makes sense because determining recidivism is at best
an imperfect science and while the guidelines set forth potentially relevant
factors, some may not be applicable in every case. Thus, R.C.
2950.09(B)(2) does not divest a court of its fact-finding powers in
assessing the relevancy of each factor. As we stated in State v. Eppinger
(2001), 91 Ohio St. 3d 158, 166, 743 N.E.2d 881, 889, “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.” (Emphasis added.)
92 Ohio St. 3d at 587-588, 2001-Ohio-1288, 752 N.E.2d 276. Pursuant to R.C.
2950.09(B)(2), a judge may also consider any other evidence that he or she deems
relevant to determining the likelihood of recidivism. Thompson at 588.
{¶24} In the Eppinger case, the Ohio Supreme Court noted that “under certain
circumstances, it is possible that one sexually oriented conviction alone can support
sexual predator adjudication.” Eppinger at 162. Further, “‘substantial evidence exists
Ashland County, Case No. 15-COA-007 10
which indicates that child sex offenders are generally serial offenders. Specifically, in
considering the Jacob Wetterling Crimes Against Children Registration Act, Section
14701, Title 42, U.S. Code, the House Report prepared for the Act stated: ‘Evidence
suggests that child sex offenders are generally serial offenders. Indeed one recent
study concluded the ‘behavior is highly repetitive, to the point of compulsion’ and found
that 74 percent of imprisoned child sex offenders had one or more prior sexual offenses
against a child.' See H.R.Rep. No. 392, 103rd Congress.” State v. Sloan, 5th Dist.
Richland No.2005-CA-0023, 2005-Ohio-5635, ¶ 58.
{¶25} We conclude the findings made by the trial court in its judgment entry are
supported by competent, credible evidence. This evidence indicates DeVore is likely to
reoffend and therefore, the trial court properly found him to be a “sexual predator.”
{¶26} DeVore's sole assignment of error is overruled.
Ashland County, Case No. 15-COA-007 11
{¶27} The judgment of the Court of Common Pleas, Ashland County, Ohio is
affirmed.
By Gwin, P.J.,
Farmer, J., and
Delaney, J., concur