[Cite as State v. Andrews, 2015-Ohio-4683.]


                 Court of Appeals of Ohio
                                   EIGHTH APPELLATE DISTRICT
                                      COUNTY OF CUYAHOGA


                                  JOURNAL ENTRY AND OPINION
                                          No. 102728



                                              STATE OF OHIO

                                                         PLAINTIFF-APPELLEE

                                                   vs.

                                        GREGORY ANDREWS

                                                         DEFENDANT-APPELLANT




                                               JUDGMENT:
                                                AFFIRMED



                                     Criminal Appeal from the
                              Cuyahoga County Court of Common Pleas
                                    Case No. CR-14-584616-A

        BEFORE: Keough, J., Celebrezze, A.J., and Kilbane, J.

        RELEASED AND JOURNALIZED: November 12, 2015
ATTORNEY FOR APPELLANT

Jerome M. Emoff
Dworken & Bernstein Co., L.P.A.
1468 West Ninth Street
Suite 135
Cleveland, Ohio 44113

ATTORNEYS FOR APPELLEE

Timothy J. McGinty
Cuyahoga County Prosecutor
By: Denise J. Salerno
       Mary McGrath
       Daniel Van
Assistant Prosecuting Attorneys
The Justice Center, 9th Floor
1200 Ontario Street
Cleveland, Ohio 44113
KATHLEEN ANN KEOUGH, J.:

       {¶1} Defendant-appellant, Gregory Andrews, appeals from the trial court’s decision

classifying him as a sexual predator. For the reasons that follow, we affirm.

       {¶2} In 2014, Andrews was named in a seven-count indictment stemming from the rape

of a 13-year-old girl in 1994. He was charged with two counts each of rape and corruption of a

minor. He was also charged with one count each of felonious sexual penetration, gross sexual

imposition, and kidnapping. All counts contained a three-year firearm specification. In January

2015, Andrews pleaded guilty to one count of rape and was advised that any sex offender

registration requirements would be in accordance with Megan’s Law.

       {¶3} Andrews was sentenced to eleven years in prison. At sentencing, the trial court also

conducted a sex offender classification hearing. After considering the presentence investigation

report, the parties’ sentencing memorandums, the victim’s impact statement, and the Court

Psychiatric Clinic H.B. 180 report, the trial court classified Andrews as a sexual predator. It is

from this finding that Andrews appeals, raising a single assignment of error challenging his

sexual predator classification.

       {¶4} Pursuant to former R.C. 2950.01(E), 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.” Pursuant to former R.C. 2950.09(B)(4), a

trial court must determine by clear and convincing evidence that an offender is a sexual predator.

 “Clear and convincing evidence is that measure or degree of proof which will produce in the

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

 It is intermediate, being more than a mere preponderance, but not to the extent of such certainty

as is required beyond a reasonable doubt as in criminal cases. It does not mean clear and
unequivocal.” State v. Eppinger, 91 Ohio St.3d 158, 165, 743 N.E.2d 881 (2001), citing Cross

v. Ledford, 161 Ohio St. 469, 477, 120 N.E.2d 118 (1954).

       {¶5} This court reviews sexual offender classification determinations under a civil

manifest-weight-of-the-evidence standard because a sex offender classification under Megan’s

Law is considered civil in nature. State v. Wilson, 113 Ohio St.3d 382, 2007-Ohio-2202, 865

N.E.2d 1264, syllabus. The civil manifest-weight-of-the-evidence standard “affords the lower

court more deference than the criminal standard.” Id. at ¶ 26. “Thus, a judgment supported by

‘some competent, credible evidence going to all the essential elements of the case’ must be

affirmed.” Id., quoting C.E. Morris Co. v. Foley Constr. Co., 54 Ohio St.2d 279, 376 N.E.2d

578 (1978), syllabus.

       {¶6} Former R.C. 2950.09(B)(3) listed ten factors for a court to consider in determining

whether a sexual offender is a sexual predator: (1) the offender’s age, (2) the offender’s criminal

record, (3) the age of the victim, (4) the number of 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) mental health history, (8) the nature of the

offender’s sexual contact with the victim, (9) whether the offender displayed cruelty or made

threats of cruelty, and (10) any other “behavioral characteristics” that contribute to the offender’s

actions. See former R.C. 2950.09(B)(3)(a)-(j).

       {¶7} Andrews contends that the applicable factors found in former R.C. 2950.09(B) and

the results of the STATIC-99 test are insufficient to establish that he is likely to engage in the

future of one or more sexually oriented offenses. We disagree and find that the record contains

clear and convincing evidence to support the trial court’s determination.
       {¶8} In this case, the trial court individually considered the factors found in former R.C.

2950.09(B) and the STATIC-99 test results. In fact, the court indicated that it viewed the factors

and results in the light most favorable to Andrews by specifically not relying on questionable or

unsubstantiated information.

       {¶9} The STATIC-99 reveals that Andrews’s overall age-adjusted score of 6, places him

in the “high” risk category. While the test revealed that Andrews is only 14.7% likely to

reoffend in five years, this court has previously held that “[t]he STATIC-99 cannot purport to

make individualized assessments of future conduct any more than a life expectancy table can

provide an accurate prediction of a particular individual’s longevity.” State v. Ellison, 8th Dist.

Cuyahoga No. 78256, 2002-Ohio-4024, ¶ 9. Furthermore, the decision to find Andrews to be a

sexual predator is not dependent solely on the merits of a psychological report or the results of

the STATIC-99; the other factors listed in former R.C. 2950.09(B)(3) must be considered.

       {¶10} It is well settled that in making a sexual predator determination, a trial court should

discuss, on the record, the evidence and factors of R.C. 2950.09(B)(3) upon which it relied in

making its determination as to the sexual offender classification. Eppinger, 91 Ohio St.3d at

166, 2001-Ohio-274, 743 N.E.2d 88. The weight to be given the factors is within the trial

court’s discretion, and the court is permitted to rely upon one factor more than others in making

its determination and need not find the evidence submitted supports a majority of the factors.

State v. Hardges, 8th Dist. Cuyahoga No. 88126, 2007-Ohio-1158, citing State v. Wells, 12th

Dist. Butler No. 2006-03-064, 2007-Ohio-42, ¶ 8.

       {¶11} Here, the transcript reflects the particular evidence upon which the trial court relied

in making its adjudication and shows that the trial court considered all the factors under former

R.C. 2950.09(B), as well as other relevant factors, in classifying Andrews a sexual predator.
The trial court considered the evidence presented, including the horrendous circumstances of the

offense, and that Andrews has a number of prior convictions, including crimes of violence. The

court also commented that this was Andrews’s second rape conviction, and in this case, he used a

firearm to force his 13-year-old unrelated victim to submit to sexual acts. The court particularly

noted that although Andrews was convicted of rape previously and was imprisoned for the

offense, he did not take the opportunity to participate in or complete any treatment programs.

       {¶12} Additionally, the court found that Andrews was not forthcoming with information

during his interviews and evaluations, especially about his prior convictions. The court was

troubled that Andrews denied having a sexual preference for children, yet his victim in this rape

case was 13 years old. Finally, the court took issue that Andrews did not have any recollection

of the rape or show any remorse.

       {¶13} Based on the record before this court, the trial court’s findings are supported by

some competent, credible evidence in the record; the sexual predator classification was supported

not only by sufficient evidence, but by clear and convincing evidence. Accordingly, Andrews’s

assignment of error is overruled.

       {¶14} Judgment affirmed.

       It is ordered that appellee recover from appellant 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.
KATHLEEN ANN KEOUGH, JUDGE

FRANK D. CELEBREZZE, JR., A.J., and
MARY EILEEN KILBANE, J., CONCUR
