[Cite as State v. Talani, 2020-Ohio-3369.]


                               COURT OF APPEALS OF OHIO

                              EIGHTH APPELLATE DISTRICT
                                 COUNTY OF CUYAHOGA

STATE OF OHIO,                                     :

                 Plaintiff-Appellee,               :
                                                             No. 108788
                 v.                                :

JEFFREY TALANI,                                    :

                 Defendant-Appellant.              :


                                JOURNAL ENTRY AND OPINION

                 JUDGMENT: AFFIRMED
                 RELEASED AND JOURNALIZED: June 18, 2020


             Civil Appeal from the Cuyahoga County Court of Common Pleas
                   Case Nos. CR-88-225344-ZA and CR-94-313066-ZA


                                             Appearances:

                 Michael C. O’Malley, Cuyahoga County Prosecuting
                 Attorney, and Daniel Van, Assistant Prosecuting Attorney,
                 for appellee.

                 The Law Offices of Eric L. Foster, L.L.C., and Eric L.
                 Foster, for appellant.


MARY J. BOYLE, P.J.:

                   Defendant-appellant, Jeffrey Talani, appeals his classification as a

sexual predator. He raises one assignment of error for our review:
      The trial court erred in finding the state proved by clear and convincing
      evidence that Jeffrey Talani is a sexual predator under R.C. 2950.09.

               Finding no merit to his assignment of error, we affirm the trial court’s

judgment.

I.   Factual Background and Procedural History

               In 1988, in Cuyahoga C.P. No. CR-88-225344-ZA, Talani pleaded

guilty to one count of sexual battery, with a specification that he caused physical

harm to the victim, and three counts of gross sexual imposition. The trial court

sentenced him to two-year prison terms for each count of gross sexual imposition,

to be served consecutively to each other and concurrently to a prison term of four-

to-ten years for sexual battery with the specification for causing physical harm to the

victim.

               In 1995, in Cuyahoga C.P. No. CR-94-313066-ZA, a jury convicted

Talani of one count of rape and one count of gross sexual imposition. The trial court

sentenced him to life imprisonment for rape and a two-year prison term for gross

sexual imposition, to run consecutively with the term of life imprisonment for rape.

The trial court further ordered that Talani’s sentence for CR-94-313066-ZA run

consecutively to his sentence for CR-88-225344-ZA.          This court affirmed his

convictions. State v. Talani, 8th Dist. Cuyahoga No. 68750, 1996 Ohio App. LEXIS

60 (Jan. 11, 1996). In 1996, Talani petitioned to vacate or set aside his sentence, the

trial court denied his motion, and this court affirmed. State v. Talani, 8th Dist.

Cuyahoga No. 72031, 1997 Ohio App. LEXIS 5309 (Nov. 26, 1997).
               In a prior appeal, State v. Talani, 8th Dist. Cuyahoga No. 68750, 1996

Ohio App. LEXIS 60 (Jan. 11, 1996), we described the facts underlying Talani’s

convictions as follows:

       [D.T.], the victim [in CR-94-313066-ZA], testified that when she was
       nine years old Talani raped her. The victim stated that her brother
       passed away and the night before the funeral, February 18, 1983, she
       stayed over Talani’s house at the request of her parents. The victim
       stated that she was asleep on the couch in the living room and Talani
       woke her up and told her to go to the basement with him. The victim
       testified that an adult movie was playing on the television in the
       basement. Talani ordered her to remove her clothes, made her touch
       his penis, and anally raped her.

       The victim testified that Talani, a city of Brooklyn Heights Police
       Officer, told her that if she ever told anyone about the incident he would
       kill her parents. The victim never reported the incident to anyone, not
       even to the police when she was questioned in 1987 about separate
       charges against Talani.

       [D.T.] stated that in 1994, she was treated for colitis and she informed
       her doctor that she had been anally raped years earlier. Her doctor sent
       her to see psychologist Martha Keyes to discuss the rape. In April 1994,
       the victim went to see Keyes and for the first time revealed the events
       that occurred on February 18, 1983.

       [L.T.], the victim’s mother testified that after February 13, 1983 her
       daughter was withdrawn and quiet. In days that followed, the victim
       blurted out that it was all [L.T.]’s fault. [L.T.] did not understand what
       her daughter meant.

       [A.A.], another sexual abuse victim of Talani, testified that Talani had
       sexually abused her in 1987. [A.A.] stated that while Talani was the
       chief of police he forced her to rub his penis to ejaculation, anally and
       digitally penetrated her. Talani was convicted of sexually abusing [A.A.]
       [in CR-88-225344-ZA] and was serving his sentence during the trial
       now on appeal.

Id. at 1-3.
              In 2018, the Ohio Department of Rehabilitation and Correction

notified the trial court and Talani that Talani required a sexual predator

classification hearing pursuant to Megan’s Law since he was convicted before 1997

and is still serving his prison sentence. The court psychiatric clinic evaluated 65-

year-old Talani and completed a sexual offender evaluation report dated January

28, 2019.

              According to the evaluation report, Talani was police chief in

Brooklyn Heights in 1980 until he was charged with sexual offenses in 1987, and he

was on the Cuyahoga Heights School Board from 1984 to 1988. The report states

that in 1987, Talani was charged with sexual abuse of two girls, ages four and eight,

and in 1994, he was charged with sexually assaulting a nine-year-old girl in 1983.

Talani told the evaluator “that he did not commit any sexual assaults against these

females.” According to the report, the Parole Board has denied his requests for

parole “several times” because Talani has continued to deny that he committed any

sexual offenses.

              The evaluation report states that the “Comprehensive Sex Offender

Program was recommended,” but Talani did not complete it because he denied

“sexually abusing anyone.” The evaluator asked Talani what he learned from the

sexual offender programming that he did complete, and Talani replied, “I learned

that I ain’t no pervert—that I don’t have no sexual deviance.”

              The evaluation report explains that in 2012, Talani was sanctioned for

having a relationship with a female prison guard. Talani told the evaluator that he
“became attracted to” the guard and that they “had feelings for each other” but that

their relationship was “never sexual.”

               The evaluation report summarizes Talani’s results on the Static-99R

actuarial instrument designed to estimate the likelihood of sexual-offense

recidivism. Talani’s Static-99R score was negative two, which indicates that he has

a “very low” risk of recidivism. The evaluation report also explains that based on the

Abel Assessment for Sexual Interest, Talani has a sexual interest in adolescent and

adult females. Based on the objective measure of the Abel Assessment, Talani “has

a significant sexual interest in adolescent (14-to-17-year-old) and adult females.”

The report further noted that “it is ‘normal’ for adult test subjects to have a sexual

interest in adolescents.”

               On March 20, 2019, the trial court held a hearing to determine

whether Talani should be classified as a sexual predator under Am. Sub. H.B. No.

180 (“Megan’s Law”). The state entered as exhibits the sexual offender evaluation

report; the indictment, plea, and sentence for CR-88-225344-ZA; the indictment,

verdict, and sentence for CR-94-313066-ZA; the indictment, plea, and sentence for

a nonsexual, assault offense that Talani committed in 1988; a blank Static-99R

scoring sheet; and the Static-99R coding rule book.

               On March 21, 2019, the trial court found that the state had shown by

clear and convincing evidence that Talani should be classified as a sexual predator

considering the statutory factors, his age, his prior history and convictions for sexual

offenses, the victims’ ages, number of victims, failure to complete sex offender
programming while in prison, and a pattern of abuse and threats of cruelty. The

trial court then advised Talani on his registration requirements. Under Megan’s

Law, a sexual-predator classification is the most severe designation, requiring

Talani to register every 90 days for the rest of his life. Former R.C. 2950.06(B)(1)

and 2950.07(B)(1).

              It is from this judgment that Talani now appeals.

II. Law and Analysis

              In his sole assignment of error, Talani argues that the trial court erred

in classifying him as a sexual predator. He contends that the evidence does not

support the trial court’s finding that he is “likely to engage in the future in one or

more sexually oriented offenses.” He maintains his innocence and argues that his

completion of only mandatory sex offender programming should not count against

him. He further contends that the Static-99R Assessment suggests that he is

unlikely to reoffend.

              Neither party disputes that because Talani committed his crimes

before Megan’s Law was enacted in 1997 and was still serving his sentence, he was

subject to the sexual offender classification system under Megan’s Law. See State v.

Kahn, 8th Dist. Cuyahoga No. 104360, 2017-Ohio-4067, ¶ 25 (offenders who

committed their offenses prior to January 1, 2008 are subject to the sexual-offender

classification system and hearing requirements under Megan’s Law).

              Under Megan’s Law, there were three classifications for sexual

offenders: sexually oriented offender, habitual sex offender, and sexual predator.
The main distinctions in the classifications were the reporting requirements:

a sexual predator had to register his or her address every 90 days for life; a habitual

sex offender had to register his or her address annually for 20 years; and a sexually

oriented offender had to register his or her address annually for 10 years. See former

R.C. 2950.04(C)(2); former 2950.06(B)(1) and (2); and former 2950.07(B)(1) and

(2).

               The “sexually oriented offender” classification is the least restrictive

classification. State v. Hayden, 96 Ohio St.3d 211, 2002-Ohio-4169, 773 N.E.2d

502, ¶ 9. While it was not defined by R.C. Chapter 2950, the Ohio Supreme Court

explained that “a ‘sexually oriented offender’ is a person ‘who has committed a

“sexually oriented offense” as that term is defined in R.C. 2950.01(D) but who does

not fit the description of either habitual sex offender or sexual predator.’” Id.,

quoting State v. Cook, 83 Ohio St.3d 404, 700 N.E.2d 570 (1998), and State v.

Williams, 88 Ohio St.3d 513, 728 N.E.2d 342 (2000). The next classification is

“habitual sex offender,” which is defined as a person who “is convicted of or pleads

guilty to a sexually oriented offense and who previously has been convicted of or

pleaded guilty to one or more sexually oriented offenses.” Former R.C. 2950.01(B).

Finally, the most restrictive classification is “sexual predator,” which is defined 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.” Former R.C. 2950.01(E).
              Sexual predator classifications under Megan’s Law are considered

civil in nature. State v. Wilson, 113 Ohio St.3d 382, 2007-Ohio-2202, 865 N.E.2d

1264, syllabus. As a result, the civil manifest-weight-of-the-evidence standard of

review applies on appeal. State v. Nelson, 8th Dist. Cuyahoga No. 101228, 2014-

Ohio-5285, ¶ 8. That standard gives “great deference” to findings of fact, so

judgments supported by competent, credible evidence must be affirmed. Wilson at

¶ 26. Moreover, the state had the burden of proving by clear and convincing

evidence that Talani was a sexual predator. State v. Hendricks, 8th Dist. Cuyahoga

No. 102365, 2015-Ohio-3035, ¶ 13.       “Clear and convincing evidence” is “that

measure or degree of proof” that “produce[s] in the mind of the trier of facts a firm

belief or conviction as to the facts sought to be established.” Lansdowne v. Beacon

Journal Publishing Co., 32 Ohio St.3d 176, 180-181, 512 N.E.2d 979 (1987), citing

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

              Former R.C. 2950.09(B)(3) set forth factors for a trial court to

consider when determining whether an offender should be classified as a sexual

predator. Those factors included the offender’s age and criminal record; the victim’s

age; whether the offense involved multiple victims; whether the offender used drugs

or alcohol to impair the victim; whether the offender has previously been convicted

of any criminal offense; whether the offender participated in any available program

for sex offenders; whether the offender demonstrated a pattern of abuse or displayed

cruelty toward the victim; any mental illness or disability of the offender; and any

other behavioral characteristics that contribute to the sex offender’s conduct. See
former R.C. 2950.09(B)(3)(a)-(j). Although the court must consider the factors set

forth in former R.C. 2950.09(B), it is not required to make an individual assessment

of those factors, nor is one factor or any combination of factors dispositive. Kahn,

8th Dist. Cuyahoga No. 104360, 2017-Ohio-4067, at ¶ 28, citing State v. Caraballo,

8th Dist. Cuyahoga No. 89757, 2008-Ohio-2046.

              Talani’s overarching argument is that he is innocent of the crimes for

which he was convicted. During the sexual predator classification hearing and in his

appellate brief, Talani asserts his innocence for the crimes of which the jury

convicted him in CR-94-313066-ZA. In the sexual offender evaluation report, he

claims that he is innocent for all offenses, including the offenses of which he plead

guilty in CR-88-225344-ZA. This court has already affirmed Talani’s convictions in

CR-94-313066-ZA, and his convictions are not before us on appeal. Talani, 8th Dist.

Cuyahoga No. 68750, 1996 Ohio App. LEXIS 60.

              Talani argues that the trial court erroneously determined that

R.C. 2950.09(B)(3)(f) requires him to participate in every available sex offender

program. He maintains that he chose not to participate in the recommended, but

non-mandatory, programming because he did not sexually abuse anyone, and he

should not be punished for disagreeing with the jury that convicted him. Former

R.C. 2950.09(B)(3)(f) includes as a factor “whether the offender participated in

available programs for sexual offenders.” The trial court heard evidence that Talani

completed all mandatory sex offender programs but did not participate in any

additional, recommended programs. The trial court found that Talani completed no
programming in prison “other than mandatory sex offender programming.” The

trial court did not determine that Talani was required to participate in every

available program, and the trial court’s consideration of whether Talani

“participated in available program for sexual offenders” was consistent with

R.C. 2950.09(B)(3)(f).

               Talani further argues that his Static-99R score of negative two shows

that he is unlikely to reoffend. Factors considered on the Static-99R include prior

sexual offenses, victim characteristics, and the perpetrator’s age.      The sexual

offender evaluation report explains that Talani’s 1988 and 1994 charges for sexual

offenses were an “index cluster” and were “brought forward” to the 1994 conviction.

The Static-99R Coding Rules, which the state entered into evidence at the sexual

classification hearing, describes index clusters as follows:

      An offender may commit a number of sex offences in different
      jurisdictions, over a protracted period, in a spree of offending prior to
      being detected or arrested. Even though the offender may have a
      number of sentencing dates in different jurisdictions, the subsequent
      charges and convictions would constitute an index cluster. These
      “spree” offences would group together – the early ones would not be
      considered “priors” and the last, the “index” - they all become the index
      cluster. This is because the offender has not been “caught” for the
      earlier offences [sic] and then “chosen” to reoffend in spite of the
      detection. Furthermore, historical offences that are detected after the
      offender is convicted of a more recent sex offence would be considered
      part of the index offence (pseudo-recidivism) and become part of the
      index cluster[.]

      ***

      For two offences to be considered separate offences, the second offence
      must have been committed after the offender was detected (i.e.,
      arrested or charged) and/or sanctioned for the previous offence. For
      example, a sex offence committed while an offender was released on
      bail for a previous sex offence would supersede the previous charge and
      become the index offence. This is because the offender knew he had
      been detected for his previous crimes but chose to reoffend anyway.

               Here, Talani committed sexual offenses in 1983 and 1988. Only after

he was charged and sentenced for the 1988 offenses was he charged and convicted

of the 1983 offenses.      Therefore, the offenses from 1983 and 1988 together

constituted the index cluster, and Talani received no points for prior sex offenses.

Talani scored one point for “unrelated victims” and negative three points for being

over age 60. Talani’s Static-99R score was therefore negative two, and his risk of

recidivism “very low.” The sexual offender evaluation report notes that the Static-

99R “does not measure all relevant risk factors[,] and Mr. Talani’s recidivism risk

may be higher or lower than that indicated by Static-99R based on factors not

included in this risk tool.”

               Talani contends that the Static-99R is a valuable tool that should be

considered as evidence that he should not be designated a sexual predator. Talani

points to State v. Eppinger, 91 Ohio St.3d 158, 163, 743 N.E.2d 881, 2001-Ohio-247,

in which the Ohio Supreme Court stated that “the evidence presented by a

psychologist, psychiatrist, or other expert in the field of predicting future behavior

may be the best tool available to the court to assist it in making these

determinations.” He also relies on State v. Pierce, 8th Dist. Cuyahoga No. 88470,

2007-Ohio-3665, ¶ 20, in which this court acknowledged the “inconsistent

application of the predator label.” Talani further identifies cases in which this court
has accepted the Static-99R to support a finding under R.C. 2950.09: State v.

Durant, 2017-Ohio-8482, 99 N.E.3d 1217 (8th Dist.); State v. Dooley, 8th Dist.

Cuyahoga No. 84206, 2005-Ohio-628; State v. Ford, 8th Dist. Cuyahoga No. 83683,

2004-Ohio-3293; State v. Hardges, 8th Dist. Cuyahoga No. 88126, 2007-Ohio-

1158; Pierce, 8th Dist. Cuyahoga No. 88470, 2007-Ohio-3665.

               The state argues that this court has questioned the utility of the Static-

99 assessment, citing to State v. Ellison, 8th Dist. Cuyahoga No. 78256, 2002-Ohio-

4024 and State v. Gray, 8th Dist. Cuyahoga No. 100492, 2014-Ohio-3139. In

Ellison, this court held that “[t]he STATIC-99 cannot purport to make an

individualized assessment of future conduct any more than a life expectancy table

can provide a[n] accurate prediction of a particular individual’s longevity.” Ellison

at ¶ 9. In Ellison, this court affirmed the trial court’s sexual-predator classification

and stated that the trial court “was not obligated to give the psychological report any

great weight.” Id. In Gray, we stated that “while the trial court could consider

the Static-99 results, it was not required to defer to those results when weighing the

statutory factors.” Gray at ¶ 19; see also State v. Purser, 153 Ohio App.3d 144,

2003-Ohio-3523, 791 N.E.2d 1053, ¶ 42 (8th Dist.) (“psychological tests designed to

indicate a sexual offender’s propensity to reoffend, and the resulting risk level, must

* * * not be blindly relied upon.”).

               Although the Static-99R favors Talani in this case, we nonetheless

cannot ignore the other factors that are present and upon which the trial court relied

in reaching its determination. “The trial court may place as much or as little weight
on any of the factors as it chooses; the test is not a balancing one. Nor does the trial

court have to find the majority of the factors to be applicable to the defendant in

order to conclude the defendant is a sexual predator.” State v. Butler, 8th Dist.

Cuyahoga No. 86554, 2006-Ohio-4492. Like any other factor, the weight a court

gives to a Static-99 assessment is within the court’s discretion. We cannot substitute

our judgment for that of the trial judge. State v. Blake-Taylor, 8th Dist. Cuyahoga

No. 100419, 2014-Ohio-3495, ¶ 12.

               In reviewing the record here, the trial court adhered to the statutory

requirements     and     considered     the   relevant    factors    enumerated      in

R.C. 2950.09(B)(3). The court considered the evidence and testimony presented as

well as the arguments of counsel. The trial court found relevant to its determination

the number and ages of Talani’s victims (three victims, ages 4, 8, and 9 years old);

his criminal history and multiple convictions for sexual offenses; his refusal to

complete recommended sex offender training; and his pattern of abuse and threats

of cruelty. Despite Talani’s age and Static-99R score, the record demonstrates that

the trial court was presented with competent, credible evidence to support its

ultimate determination that Talani is a sexual predator as contemplated by

R.C. 2950.01(E). Our review reflects that the trial court’s decision was supported by

the manifest weight of the evidence.

               Accordingly, we overrule Talani’s assignment of error.

               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 be sent to said 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.



MARY J. BOYLE, PRESIDING JUDGE

SEAN C. GALLAGHER, J., and
RAYMOND C. HEADEN, J., CONCUR
