[Cite as State v. Buskirk, 2014-Ohio-5551.]


                 Court of Appeals of Ohio
                                   EIGHTH APPELLATE DISTRICT
                                      COUNTY OF CUYAHOGA


                                  JOURNAL ENTRY AND OPINION
                                          No. 101221



                                              STATE OF OHIO

                                                  PLAINTIFF-APPELLEE

                                                   vs.

                                       GERALD VAN BUSKIRK

                                                  DEFENDANT-APPELLANT




                                        JUDGMENT:
                             AFFIRMED IN PART; VACATED IN PART



                                      Criminal Appeal from the
                               Cuyahoga County Court of Common Pleas
                                     Case No. CR-88-234906-A

        BEFORE: Kilbane, P.J., Blackmon, J., and E.T. Gallagher, J.

        RELEASED AND JOURNALIZED:                   December 18, 2014
ATTORNEY FOR APPELLANT

Richard Agopian
1415 West Ninth Street
2nd Floor
Cleveland, Ohio 44113

ATTORNEYS FOR APPELLEE

Timothy J. McGinty
Cuyahoga County Prosecutor
Daniel T. Van
Assistant County Prosecutor
The Justice Center - 8th Floor
1200 Ontario Street
Cleveland, Ohio 44113
MARY EILEEN KILBANE, J.:

       {¶1}    Defendant-appellant, Gerald Van Buskirk (“Van Buskirk”), appeals his sexual

predator and habitual sexual offender classifications. For the reasons set forth below, we affirm

his sexual predator classification and vacate his habitual sexual offender classification.

       {¶2}    In February 1989, Van Buskirk was charged with three counts of rape and one

count of kidnapping. Each count carried a prior aggravated felony specification. The facts

underlying these charges were set forth by this court in Van Buskirk’s previous appeal, State v.

Van Buskirk, 8th Dist. Cuyahoga No. 57800, 1994 Ohio App. LEXIS 4409. On December 14,

1988, the victim was introduced to Van Buskirk by a mutual acquaintance. The acquaintance

suggested that the three of them go to a bar. At the end of the night, they left the bar together

and Van Buskirk was to give the mutual acquaintance and the victim a ride home. Van Buskirk

dropped off the acquaintance and then took the victim to his apartment in Lakewood. The

victim repeatedly asked to be taken home. Van Buskirk told the victim that he wanted to show

her his apartment, so she accompanied him inside. Once inside, Van Buskirk hit the victim and

repeatedly raped her. Id.

       {¶3}    The matter proceeded to a jury trial in April 1989, at which he was found guilty of

all counts. At sentencing, the trial court found kidnapping to be an allied offense and sentenced

him to three consecutive terms of 14 to 25 years in prison.

       {¶4}    In December 1996, Van Buskirk filed his delayed appeal. In his appeal, Van

Buskirk challenged his convictions, defense counsel’s effectiveness, and alleged prosecutorial

misconduct. We affirmed the judgment of the trial court, finding sufficient evidence to sustain

his convictions, defense counsel was effective, and no prosecutorial misconduct.
       {¶5}    In May 1999, the state of Ohio (“state”) requested a sexual predator adjudication.

A hearing was not held in the matter until March 2014. Prior to the hearing, the court referred

Van Buskirk to the court psychiatric clinic for an H.B. 180 evaluation and a Static-99 evaluation.

       {¶6}    At the March 2014 hearings, the trial court indicated that Van Buskirk and all

other parties had received notice of the H.B. 180 hearing, and all parties waived any defects in

the notification of the H.B. 180 hearing.1 The trial court indicated that it received records from

the Department of Rehabilitation and Correction and the court’s clinic evaluation. Defense

counsel stipulated to both reports. The state offered exhibits into the record, including journal

entries indicating prior convictions for rape in 1981, attempted rape in 1979, and aggravated

assault in 1972.

       {¶7}    The state argued that the Static-99 score placed him at the moderately high risk of

reoffending, taking into account Van Buskirk’s age, and if that was not taken into account, then

he was at a high-risk category. The state noted Van Buskirk’s history of substance abuse issues,

his failure to complete treatment, and Van Buskirk’s diagnosis of antisocial personality disorder.

       {¶8}    The trial court stated that it reviewed the file. The court noted the nature of the

offense, his prior convictions, the Static-99 score, and Van Buskirk’s lengthy criminal history,

which included rape, attempted rape, aggravated assault, and parole and probation violations.

The trial court found that Van Buskirk was a sexual predator and, at a minimum, an habitual

sexual offender.

       {¶9}    Van Buskirk now appeals, raising the following four assignments of error for

review, which shall be discussed together where appropriate.


       1The   matter was initially held on March 25, 2014, and concluded on March
31, 2014.
                                    Assignment of Error One

       The trial court erred by finding that [Van Buskirk] was both a[n] habitual sex
       offender and a sexual predator.

                                    Assignment of Error Two

       The evidence is insufficient, as a matter of law, to prove by clear and convincing
       evidence, that [Van Buskirk] is “likely to engage in the future in one or more
       sexually oriented offenses.”

                                    Assignment of Error Three

       The trial court was without jurisdiction to conduct a sexual predator hearing.

                                    Assignment of Error Four

       The finding that [Van Buskirk] was a sexual predator is against the manifest
       weight of the evidence.

                                Dual Sex Offender Classification

       {¶10} In the first assignment of error, Van Buskirk argues that the trial court erred by

finding him to be both an habitual sexual offender and a sexual predator. The state concedes

that the habitual sexual offender determination was “extraneous.”

       {¶11} In the instant case, the trial court proceeded, at the request of the state, to find Van

Buskirk an habitual sexual offender in addition to finding him a sexual offender. This court has

previously addressed this issue in State v. George, 8th Dist. Cuyahoga No. 86487,

2006-Ohio-1100.    In George, the trial court found the defendant to be an habitual sexual

offender and a sexual predator. We found that since the defendant was convicted prior to 1997,

the trial court was bound by the dictates of R.C. 2950.09(C). Id. at ¶ 17. “Pursuant to that

section, a trial court is to make a determination as to whether an offender is an habitual sex

offender only if the offender was not found to be a sexual predator. R.C. 2950.09(C)(2)(c).

Id.” We held that once the trial court found the defendant to be a sexual predator, the trial
court’s analysis was complete. Id. Therefore, we vacated the defendant’s habitual sexual

predator classification. Id.

        {¶12} Likewise, in the instant case, the trial court was bound by the dictates of R.C.

2950.09(C) to make a determination as to whether Van Buskirk is an habitual sexual offender

only if he was not found to be a sexual predator. Once the trial court found Van Buskirk to be a

sexual predator, the trial court’s analysis was complete. Therefore, we vacate the trial court’s

subsequent habitual sexual offender classification. See also State v. Twiggs, 8th Dist. Cuyahoga

No. 88142, 2007-Ohio-1302.

        {¶13} The first assignment of error is sustained.

                                   Sexual Predator Classification

        {¶14} In the second and fourth assignments of error, Van Buskirk challenges his sexual

predator classification. He argues there was no evidence presented, which would have been

sufficient to maintain a finding by clear and convincing evidence that he was a sexual predator.

        {¶15} In State v. Wilson, 113 Ohio St.3d 382, 2007-Ohio-2202, 865 N.E.2d 1264, the

Ohio Supreme Court held that

        [b]ecause 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 trial judge’s findings are supported by some competent,
        credible evidence.

Id. at syllabus.

        {¶16} 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., citing C.E. Morris Co. v. Foley Constr. Co., 54 Ohio St.2d 279, 376 N.E.2d 578 (1978).
       {¶17} “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).” State v.

Eppinger, 91 Ohio St.3d 158, 161, 743 N.E.2d 881 (2001). The state has the burden of proving

that the offender is a sexual predator by clear and convincing evidence. Wilson at ¶ 20, citing

R.C. 2950.09(B)(4).

       {¶18} “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.

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.’” Id., quoting State v. Ingram,

82 Ohio App.3d 341, 346, 612 N.E.2d 454 (2d Dist.1992).

       {¶19} In making its determination as to whether an offender is a sexual predator, the trial

court must consider all relevant factors to determine whether the individual is likely to engage in

future sex offenses. These factors include, but are not limited to, the offender’s age and prior

criminal record; the age of the victim; whether the sex offense involved multiple victims;

whether the offender used drugs or alcohol to impair the victim of the sex offense; if the offender

has previously been convicted of or pleaded guilty to any criminal offense; whether the offender

completed a sentence for any conviction and, if a prior conviction was for a sex 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. R.C. 2950.09(B)(3)(a)-(j).
       {¶20} The “trial court is not required to individually assess each of these statutory factors

on the record nor is it required to find a specific number of these factors before it can adjudicate

an offender a sexual predator so long as its determination is grounded upon clear and convincing

evidence.” State v. Caraballo, 8th Dist. Cuyahoga No. 89757, 2008-Ohio-2046, ¶ 8, citing State

v. Ferguson, 8th Dist. Cuyahoga No. 88450, 2007-Ohio-2777; State v. Purser, 153 Ohio App.3d

144, 149, 2003-Ohio-3523, 791 N.E.2d 1053 (8th Dist.2003). “The court need not elaborate on

its reasons for finding certain factors as long as the record includes the particular evidence upon

which the trial court relied in making its adjudication.” Caraballo at ¶ 8, citing Ferguson;

Eppinger, 91 Ohio St.3d at 166, 743 N.E.2d 881 (2001).

       {¶21} Applying R.C. 2950.09(B)(3) to the facts of this case, we find that multiple factors

are satisfied such that there exists clear and convincing evidence supporting the trial court’s

decision to classify Van Buskirk as a sexual predator. Van Buskirk was 66 years old at the time

of the hearing in 2014, and 40 years old when he raped the victim in 1988. Van Buskirk’s

criminal history consists of a 1981 rape conviction, a 1979 attempted rape conviction, and a 1972

aggravated assault. The court noted that two of Van Buskirk’s other crimes were sexual in

nature. In the instant case, the court stated that

       the rape was violent based on the scenario that I read. [Van Buskirk] struck her,
       damaged her glasses, and threatened to hurt her if she did not cooperate with
       sexual intercourse. And for approximately a three hour period, this defendant
       had oral, vaginal, and anal sex with the victim. He made her lay on her side so he
       could attempt sexual intercourse so he could get an erection.

       {¶22} The Static-99 placed him at a high risk for reoffending. However, with his age

factored in, he was then placed in the moderately high risk for reoffending. His score was

equated with the following determination for recidivism: Van Buskirk is 39 percent likely to

commit another sexual offense within five years, 45 percent more likely to commit another
sexual offense in 10 years, and 52 percent more likely to commit another sexual offense in

15 years. Furthermore, the record reflects that Van Buskirk did not complete his sexual offender

programs while incarcerated, and he did not complete his substance abuse treatment. Van

Buskirk was also diagnosed with antisocial personality disorder.

       {¶23} Thus, after reviewing the record, including Van Buskirk’s age, prior criminal

history, lack of treatment, mental illness, the Static-99 results and recidivism factors as applied to

R.C. 2950.09(B)(3), we find the trial court’s classification of Van Buskirk as a sexual predator is

supported by competent, credible evidence.

       {¶24} Accordingly, the second and fourth assignments of error are overruled.

                                            Jurisdiction

       {¶25} In the third assignment of error, Van Buskirk argues the trial court was without

jurisdiction to conduct a sexual predator classification hearing.

       {¶26} Under R.C. 2950.09(C), where the offender was sentenced prior to January 1,

1997, and is still serving a term of imprisonment in a state prison, the sexual predator

classification hearing may occur after the Department of Rehabilitation and Correction

recommends whether the offender be adjudicated a sexual predator. Id. at 2950.09(C)(1) and

(2). See also State ex rel. Bruggeman v. Ingraham, 87 Ohio St.3d 230, 232, 1999-Ohio-27, 718

N.E.2d 128. The court may then conduct a hearing to determine whether the offender is a sexual

predator. R.C. 2950.09(C)(1) and (2).

       {¶27} Van Buskirk argues that because the Department of Rehabilitation and Correction

did not initiate the proceedings as required by R.C. 2950.09, the trial court was without

jurisdiction to conduct the sexual predator hearing. However, there is nothing in the record to

support Van Buskirk’s contention.        When considering any argument raised on appeal, a
reviewing court is limited to considering only those matters found in the record. State v. Bonds,

8th Dist. Cuyahoga No. 83866, 2004-Ohio-3483, ¶ 14, citing Volodkevich v. Volodkevich, 48

Ohio App.3d 313, 314, 549 N.E.2d 1237 (9th Dist.1989). Further, the appellant has the duty to

provide a reviewing court with a record of the facts, testimony, and evidentiary matters that are

necessary to support the appellant’s assignments of error. Id. See also App.R. 9(B) and 10(A).

 In the absence of such evidence within the record, this court must presume the regularity of the

proceedings below. Id.

       {¶28} Here, the record indicates that the trial court requested an “H.B. 180 packet” from

the facility where Van Buskirk was incarcerated as well as Van Buskirk’s prison file. At the

sexual predator hearing, the trial court stated that all parties had received notice of the H.B. 180

hearing and all parties waived any defects in the notification of the H.B. 180 hearing.

Furthermore, the trial court noted at the hearing and in a journal entry that it was in receipt of the

February 2014 Adult Parole Authority’s “notice of offender’s hearing.” The court imposed its

classification after due consideration of all relevant factors and opposed any modification or

reduction in Van Buskirk’s sentence.        Based on the foregoing, we presume regularity and

conclude that the court was within its jurisdiction to conduct the sexual predator hearing.

       {¶29} The third assignment of error is overruled.

       {¶30} Accordingly, Van Buskirk’s sexual predator classification is affirmed, and his

habitual sexual offender classification is vacated.

       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.




MARY EILEEN KILBANE, PRESIDING JUDGE

PATRICIA ANN BLACKMON, J., and
EILEEN T. GALLAGHER, J., CONCUR
