[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
