State v. Stewart , 2018 Ohio 5070 ( 2018 )


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  • [Cite as State v. Stewart, 
    2018-Ohio-5070
    .]
    IN THE COURT OF APPEALS
    ELEVENTH APPELLATE DISTRICT
    LAKE COUNTY, OHIO
    STATE OF OHIO,                                    :      OPINION
    Plaintiff-Appellee,              :
    CASE NO. 2018-L-083
    - vs -                                    :
    MATTHEW D. STEWART,                               :
    Defendant-Appellant.             :
    Criminal Appeal from the Lake County Court of Common Pleas, Case No. 2007 CR
    000868.
    Judgment: Affirmed.
    Charles E. Coulson, Lake County Prosecutor, and Jennifer A. McGee, Assistant
    Prosecutor, Lake County Administration Building, 105 Main Street, P.O. Box 490,
    Painesville, OH 44077 (For Plaintiff-Appellee).
    Charles R. Grieshammer, Lake County Public Defender, and Vanessa R. Clapp,
    Assistant Public Defender, 125 East Erie Street, Painesville, OH 44077 (For
    Defendant-Appellant).
    CYNTHIA WESTCOTT RICE, J.
    {¶1}     Appellant, Matthew D. Stewart, appeals the judgment of the Lake County
    Court of Common Pleas, classifying him a sexual predator, pursuant to former R.C.
    Chapter 2950., the classification scheme in effect when appellant was convicted of two
    counts of gross sexual imposition in 2008. For the reasons discussed in this opinion,
    we affirm the trial court’s judgment.
    {¶2}   In May 2008, appellant pleaded guilty to two counts of gross sexual
    imposition for digitally penetrating two minor girls. See State v. Stewart, 11th Dist. Lake
    No. 2008-L-112, 
    2009-Ohio-921
    , ¶3. He was ultimately sentenced to an aggregate
    prison term of 10 years. He appealed and this court affirmed in Stewart, 
    supra.
    {¶3}   On May 31, 2018, the trial court convened for a sexual offender
    classification hearing, pursuant to former R.C. 2950. Following the hearing, the trial
    court found appellant to be a sexual predator and this appeal followed.          Appellant
    assigns the following as error:
    {¶4}   “The trial court committed reversible error when it labeled the defendant-
    appellant a sexual predator against the manifest weight of the evidence.”
    {¶5}   Appellant contends the evidence adduced at the sexual-offender hearing
    did not militate in favor of a sexual predator classification.
    {¶6}   When appellant committed the offenses that led to his classification, there
    were three categories of sexual offenders: (1) sexually oriented offenders, (2) habitual
    sex offenders, and (3) sexual predators. State v. Wilson, 
    113 Ohio St.3d 382
    , 2007-
    Ohio-2202, ¶12.     “[A] ‘sexual predator’ is 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.” Id. at ¶15.
    {¶7}   In the instant matter, appellant pleaded guilty to two counts of gross
    sexual imposition, sexually-oriented offenses; hence, the sole issue on appeal is
    whether the trial court properly determined he was likely to engage in one or more
    sexually-oriented offenses in the future.
    2
    {¶8}   “The state must prove that an offender is a sexual predator by clear and
    convincing evidence. [Former] R.C. 2950.09(B)(4).” Wilson, supra, at ¶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.” Cross v. Ledford, 
    161 Ohio St. 469
     (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 (2d Dist.1992).
    {¶9}   Former R.C. 2950.09(B)(3) set forth ten factors for a court to consider in
    determining whether a sexual offender is a sexual predator. Wilson, supra, at ¶19. The
    factors include:
    {¶10} (1) the offender’s age, (2) the offender’s criminal record, (3) the age
    of the victim, (4) whether there were multiple victims, (5) whether
    the offender used drugs or alcohol to impair the victim, (6) if the
    offender has previously been convicted of a crime, whether he
    completed his sentence, and if the prior offense was a sexually
    oriented offense, whether he completed a sex-offender program,
    (7) whether the offender has a mental illness or disability, (8) the
    nature of the offender's sexual contact with the victim and whether
    it was part of a pattern of abuse, (9) whether the offender displayed
    cruelty or made threats of cruelty, and (10) any other “behavioral
    characteristics” that contribute to the offender's actions. Id., at fn. 1,
    citing R.C. 2950.09(B)(3)(a) through (j).
    {¶11} “[A] court has discretion to determine what weight, if any, it will assign to
    each factor * * *.” Wilson, supra, at ¶19.
    {¶12} Appellant contends the trial court’s judgment is against the manifest
    weight of the evidence. The state contends the “civil” standard of appellate review
    pertaining to “weight” challenges applies under these circumstances.           In Eastley v.
    Volkman, 
    132 Ohio St.3d 328
    , 
    2012-Ohio-2179
    , ¶17, held the manifest-weight standard
    3
    set forth in State v. Thompkins, 
    78 Ohio St.3d 380
     (1997), which applied to criminal
    matters, applied equally to civil cases. As such, when considering a manifest-weight
    challenge in either context, an appellate court reviews the entire record, weighs the
    evidence and all reasonable inferences, considers the credibility of witnesses and
    determines whether in resolving conflicts in the evidence, the fact finder clearly lost its
    way and created a manifest miscarriage of justice justifying reversal. Id. at 387.
    {¶13} At the hearing, both the state and counsel for appellant stipulated to the
    report and findings of Dr. Jeff Rindsberg, a board certified forensic psychologist. In
    doing so, each party agreed that the hearing was limited to argumentation relating to the
    various factors and each party’s recommendations in light of the arguments.
    {¶14} With respect to Dr. Rindsberg’s report, appellant was evaluated using
    several different assessment tools.      First, the doctor conducted an Actuarial Risk
    Assessment on appellant, an empirical assessment tool designed to evaluate the risk of
    sexual recidivism based on commonly available demographic and criminal history
    information. On this assessment, appellant scored “low-moderate,” i.e., he is in the low
    end of a moderate range to reoffend. The doctor further noted additional research
    factors used in evaluating sexual offenders which were predictors of sexual recidivism,
    the strongest of which were sexual deviancy and antisocial orientation.          Of these,
    appellant exhibited interest in children, paraphilic interests, and a history of rule
    violations. In relation to these points, Dr. Rindsberg ultimately opined appellant’s risk of
    committing an additional sex offense was at least moderate. The doctor stated that
    appellant:
    {¶15} “has an underlying sexual preference, including for children. He
    admits having a predilection towards abusing others who either
    4
    cannot decline his advances or are unaware of them; he admits
    that he has such fear of perceived inadequacy that he searched for
    situations in which he cannot be rejected. Substance use was also
    a problem for him as it lowered his inhibitions. Again, Pedophilic
    Disorder is applicable.”
    {¶16} Dr. Rindsberg then proceeded to review and analyze his findings in
    relation to the statutory sexual predator factors ultimately concluded appellant was at a
    moderate to high risk for sexually recidivating.
    {¶17} At the hearing, the state used the foregoing as a basis for its
    recommendation to classify appellant as a sexual predator.            The state further
    underscored specific aspects of appellant’s record and the circumstances of the
    underlying conviction, e.g., the young ages of the victims and the fact that he committed
    the crimes while the children were sleeping. The state also noted appellant’s stated
    preference for child pornography.
    {¶18} Defense counsel, in requesting the court to classify appellant a habitual
    sex offender, urged the court that appellant had matured significantly and cultivated
    self-control during his 10-year term of imprisonment. And counsel indicated appellant’s
    10-year term of imprisonment was a sufficient deterrent to avoid committing any sex
    offense in the future. Counsel also pointed out that appellant has abstained from alcohol
    and drug use for 10 years and plans to remain sober. Counsel advised the court that
    appellant had been accepted in a culinary arts program and intends on moving forward
    with a productive life. Finally, counsel stated that labeling appellant a habitual sexual
    offender would sufficiently comport with the purposes of sex-offender legislation;
    namely, notification and protection of the community.
    5
    {¶19} After considering the evidence, including appellant’s 2008 pre-sentence
    investigation, the psychological evaluation, the prison institution report summary, and
    recommendations of counsel, the court made the following findings vis-à-vis the
    statutory factors on record:
    {¶20} (A) The offender’s age and was 22 at the time of the offenses were
    committed, 32 today on the eve of his prison release.
    {¶21} (B) The offender’s prior criminal record. There was a Juvenile
    Court adjudication for attempted gross sexual imposition, which
    would have been a felony four had the crime been committed by an
    adult. It was a sex offense, and the adjudication was made in
    2005. There’s also a municipal court conviction for possession of
    marijuana in 2006. Of course, in this case there were two separate
    convictions for gross sexual imposition, felony offenses in 2008.
    And there’s also now on the record a conviction for weapons under
    disability, a felony offense, that crime and that conviction occurring
    while Mr. Stewart was in prison.
    {¶22} (C) The age of the victims of the sexually oriented offenses. The
    ages were seven and eight respectively for the two minor victims.
    {¶23} Whether the offenses involved multiple victims, that would be (D),
    and the answer, of course, is yes, there were two minor female
    children who were the victims of the offenses in this case.
    {¶24} (E) Whether or not drugs or alcohol were used to impair the victims
    of the offense, or to prevent them resisting. The answer would be
    no. there was no use of drugs or alcohol to impair the victims.
    There was use of alcohol by Mr. Stewart, but that’s not the factor
    that’s listed as (E).
    {¶25} With respect to (F) whether or not previous or prior convictions he
    had completed his sentence that was imposed. [Sic] With respect to
    the Juvenile Court adjudication for the attempted gross sexual
    imposition, the sentence had been completed at the time the crimes
    were committed in this case. But the record reflects, well, based
    upon his own history to Dr. Ringsberg [sic], that he failed to
    complete the substance abuse treatment requirement in that
    adjudication.
    {¶26} Also as part of (F) whether or not there had been participation in
    available programs for sexual offenders with respect to that prior
    6
    offense conviction, the Juvenile Court case. Mr. Stewart did not
    participate in sex offender programs because none were ordered
    by the court. None were offered by the Court. The record does not
    indicate he had sought any available programs for sexual offenders
    on his own or voluntarily.
    {¶27} In terms of (G), mental illness or mental disability. As noted in Dr.
    Ringsberg’s [sic] report, a diagnosis of pedophilia, sexually
    attracted to females, nonexclusive type is listed. Also the notation
    is there for cannabis use disorder and alcohol use disorder, also
    found to be full sustained remission at the present time.
    {¶28} (H) The nature of the sexual conduct. The record reflects there
    was digital penetration into the anus of each of the two minor
    children. And then whether or not this was pattern of abuse. And
    the answer would be no, it was a single incident that occurred in
    2007.
    {¶29} With respect to (I) the factor that relates to whether cruelty or
    threats of cruelty occurred. There was no evidence that Mr.
    Stewart displayed cruelty, other than the one victim describing the
    act as being painful or uncomfortable to a certain degree. There
    was no evidence of a direct threat of cruelty, but again there was an
    implied threat enhanced by the age of the victims not to tell anyone
    what had happened. And I did make the finding at the time of
    sentencing when I went back and looked that there was
    psychological harm caused to the victims as well by the criminal
    behavior of the Defendant
    {¶30} (J) Other behavioral characteristics that contribute. There are
    several that would fall under this category. The defendant admitted
    underlying deviate [sic] sexual preference that includes children.
    That’s noted in Dr. Ringsberg’s [sic] report. The Defendant also
    admitted such behavior on two other victims, one in high school,
    one in her 20’s for which he had not been charged. The Defendant
    also stated he acted on individuals who had no prior experience or
    who could not deny advances, thereby satisfying his fear of
    rejection. And that again is based upon the history taken and put
    into Dr. Ringsberg’s [sic] report from Mr. Stewart himself. Also the
    report indicate under the other characteristics that the Defendant
    admitted to watching and masturbating to child pornography. He
    acknowledged that he committed acts on others while they were
    unaware as well.
    {¶31} Under (K), any other relevant evidence, I think maybe the statute
    has that category, or at least I’ve used that in the past, other
    7
    relevant information or evidence, we’ll call it (K). There was testing
    done by Dr. Ringsbert [sic], the SASSI testing, substance abuse
    subtle screening inventory, I’m going to go from memory. I don’t
    know if I’m exactly correct. But the report carries in there and sets
    forth rather clearly that there’s a high probability of having a
    substance abuse disorder. The Static 99 indicates a score of 3, the
    low end of a moderate risk of sexual offense recidivism. Also the
    prison report that includes the disciplinary infraction history does
    indicate ten disciplinary infractions over 2008 to 2016 based upon
    that report.
    {¶32} Also with respect to substance abuse, again I know I touched upon
    it earlier, but substance abuse had been a problem for him. Now,
    it’s in full sustained remission based upon the report. Of note he
    had been drinking prior to the commission of the two sex offenses
    in this case. And there’s also reference to the cannabis use and
    the alcohol use lowering his inhibitions, thereby furthering some of
    these activities that we’ve talked about.
    {¶33} Also in Dr. Ringsberg’s [sic] report his overall diagnosis, based not
    on upon the testing but also the factors considered, found the
    Defendant at moderate to high risk for sexual offense recidivism.
    Again of concern was the fact that Mr. Stewart had engaged in
    patterns of offending with others, not just the three victims in the
    cases of which he had been convicted.
    {¶34} Despite being in a prison for ten years, falling through the cracks,
    whatever the reasoning was, he’s not had sex therapy. It just
    hasn’t happened for whatever reason. But going back to the
    original assessment that was done when he was admitted to prison
    in ’08, that was found to be an important need, a requirement, or
    recommendation of the present prison officials, but he still has not
    had that sex therapy, training, and programming that he needs to
    have. And that has all been taken into consideration by me as well.
    {¶35} The court subsequently found there was clear and convincing evidence
    that appellant is a sexual predator, i.e., appellant committed previous sexually-oriented
    offenses and was likely to engage in one or more sexually-oriented offenses in the
    future. In light of the evidence considered by the court, we conclude the trial court did
    not lose its way such that its conclusion was a manifest miscarriage of justice. We
    8
    therefore hold there was sufficient, credible evidence for the trial court to classify
    appellant a sexual predator.
    {¶36} Appellant’s sole assignment of error lacks merit.
    {¶37} For the reasons discussed in this opinion, the judgment of the Lake
    County Court of Common Pleas is affirmed.
    THOMAS R. WRIGHT, P.J.,
    COLLEEN MARY O’TOOLE, J.,
    concur.
    9
    

Document Info

Docket Number: 2018-L-083

Citation Numbers: 2018 Ohio 5070

Judges: Rice

Filed Date: 12/17/2018

Precedential Status: Precedential

Modified Date: 4/17/2021