[Cite as State v. Johnson, 2013-Ohio-4113.]




                      IN THE COURT OF APPEALS OF OHIO
                          THIRD APPELLATE DISTRICT
                              WYANDOT COUNTY


STATE OF OHIO,

        PLAINTIFF-APPELLEE,                               CASE NO. 16-13-07

        v.

RICKEY ALAN JOHNSON,                                      OPINION

        DEFENDANT-APPELLANT.


STATE OF OHIO,

        PLAINTIFF-APPELLEE,                               CASE NO. 16-13-08

        v.

RICKEY ALAN JOHNSON,                                      OPINION

        DEFENDANT-APPELLANT.


               Appeals from Wyandot County Common Pleas Court
                   Trial Court Nos. 10-CR-48 and 11-CR-0006

                                     Judgments Affirmed

                         Date of Decision: September 23, 2013


APPEARANCES:

        Emily P. Beckley for Appellant

        Jonathan K. Miller for Appellee
Case No. 16-13-07, 16-13-08


SHAW, J.

        {¶1} Defendant-appellant, Rickey Alan Johnson (“Johnson”) appeals the

March 20, 2013 judgments of the Wyandot County Court of Common Pleas

designating him as a “Sexual Predator” under Megan’s Law.1

        {¶2} On April 22, 2011, Johnson pleaded guilty to three counts of sexual

battery. The charges stemmed from an ongoing sexual relationship spanning

several years that Johnson maintained with his minor step-daughter.

        {¶3} On June 16, 2011, the trial court sentenced Johnson to serve an

aggregate prison term of fifteen years and designated him as a “Tier III” sexual

offender under the Adam Walsh Act (“AWA”), which was enacted on January 1,

2008.     However, the record indicates that the sexual conduct underlying the

offenses occurred between 1996 and 1998, when Megan’s Law was in effect.

        {¶4} Johnson subsequently appealed his designation as a “Tier III” sexual

offender to this Court and argued that the trial court was required to classify him

under the statutory scheme in effect at the time he committed his offenses. See

State v. Williams, 129 Ohio St.3d 344, 2011–Ohio–3374. Notably, the prosecution

conceded this to be error.

        {¶5} This Court reversed the trial court’s “Tier III” classification and

remanded the matter to the trial court with instructions to hold a sex offender

1
  This matter originated from two separate cases that were at one point “joined” by the trial court. Despite
“joining” the cases, the trial court maintained two case numbers throughout its court proceedings which
resulted in two corresponding appellate numbers on appeal.

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Case No. 16-13-07, 16-13-08


designation hearing in accordance with Megan’s Law. See State v. Johnson, 3d

Dist. Wyandot Nos. 16–11–05, 16–11–06, 2013-Ohio-136, ¶ 9.

       {¶6} On March 12, 2013, the trial court held a sexual offender designation

hearing and based on the applicable statutory law designated Johnson as a “Sexual

Predator.”

       {¶7} Johnson now appeals, asserting the following assignment of error.

       THE TRIAL COURT ERRED IN DESIGNATING
       APPELLANT A SEXUAL PREDATOR BECAUSE THE
       FINDING WAS NOT SUPPORTED BY CLEARING [SIC]
       AND CONVINCING EVIDENCE.

       {¶8} In his sole assignment of error, Johnson argues that the trial court

erred when it designated him as a sexual predator. Specifically, Johnson contends

that the prosecution failed to present adequate evidence to support the trial court’s

finding that he is likely to engage in future sexually-oriented offenses.         In

response, the prosecution contends that there was clear and convincing evidence to

show the likelihood of recidivism.

       {¶9} On appeal, this Court reviews a trial court’s sexual predator

designation “under the civil manifest-weight-of-the-evidence standard and [the

decision] may not be disturbed when the judge’s findings are supported by some

competent, credible evidence.” State v. Wilson, 113 Ohio St.3d 382, 2007-Ohio-

2202, at the syllabus.



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       {¶10} This civil standard of review affords the trial court more deference

than the criminal standard. Id. at ¶ 26. Thus, the standard is satisfied if there is

something of substance in the evidence from which one could draw a logical

conclusion concerning the likelihood of recidivism, enough to reach a firm belief

or conviction that the defendant is likely to commit a future sexual offense. See

State v. Robertson, 8th Dist. Cuyahoga No. 89367, 2007-Ohio-5704, ¶ 8.

       {¶11} The term “sexual predator” is defined as a person who has “been

convicted of committing a sexually oriented offense that is not a registration-

exempt sexually oriented offense and is likely to engage in the future in one or

more sexually oriented offenses.”      R.C. 2950.01(E)(1).     Sexual battery is a

“sexually oriented offense.” See R.C. 2907.03(A)(5), 2950.01(D)(1)(a). Unless

the offense qualifies the offender for automatic sexual predator status under R.C.

2950.09(A), the trial court must hold a hearing to determine if the offender is a

sexual predator.       R.C. 2950.09(B)(1),(2).    In making a sexual predator

determination, R.C. 2950.09(B)(2) requires the trial court to “consider all relevant

factors,” including:

       (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;


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       (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.

R.C. 2950.09(B)(2)(a)-(j). In applying these factors, courts should “consider the

relevance, application, and persuasiveness of individual circumstances on a case-

by-case basis.” State v. Robertson, 147 Ohio App.3d 94, 2002-Ohio-494, at ¶ 20

(3d Dist.).

       {¶12} In reviewing the evidence and the statutory factors, the trial court

must determine by clear and convincing evidence whether the offender is a sexual

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predator. R.C. 2950.09(B)(3). “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.” Cross v. Ledford, 161 Ohio St. 469, 477 (1954), citing Merrick

v. Ditzler, 91 Ohio St. 256 (1915).

       {¶13} At the sexual offender designation hearing, there were two court

exhibits submitted as evidence.       The first was the pre-sentence investigation

(“PSI”) completed on Johnson, which included details of Johnson’s criminal

history and details of the instant offense, including statements made by Johnson,

gathered during the course of the investigation. The second exhibit was the victim

impact statement, which also included statements made by the victim, Johnson’s

step-daughter, T.M.D.

       {¶14} Specifically, T.M.D. stated that the sexual abuse began when she was

twelve-years-old and lasted for several years. T.M.D. claimed that Johnson raped

her and took her virginity. T.M.D. described an initial pattern of abuse that

occurred in the evenings after dinner while her mother worked second shift.

T.M.D. stated that Johnson was violent at times to gain her compliance and

threatened to kill her if she ever told anyone about the sexual abuse. T.M.D.


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Case No. 16-13-07, 16-13-08


recalled that the locations of sexual activity eventually expanded to occur in other

residences and in vehicles. She stated that Johnson also occasionally took her to

motel rooms, where he gave her drugs and engaged in sexual activity with her.

T.M.D. further stated that Johnson was worried about impregnating her and took

her to the health department to get birth control pills.

       {¶15} Johnson claimed the sexual abuse began when T.M.D. was fifteen-

years-old and lasted three years. Johnson stated they both initiated the first sexual

contact and the relationship was consensual.         Johnson estimated that the sex

occurred between 150 to 200 times. Johnson denied giving T.M.D. drugs to

impair her judgment, but admitted they used drugs together in motel rooms. He

attributed his poor decision making to his drug abuse and conceded it was

“probably more [his] fault than hers.” (Court’s Ex. 1).

       {¶16} At the hearing, the prosecution also presented the testimony of

Special Agent William Latham, a former investigator for the Wyandot County

Prosecutor’s Office. Mr. Latham originally investigated the case in July of 2010

when T.M.D. initially disclosed the allegations of sexual abuse. Mr. Latham

conducted two interviews of Johnson.

       {¶17} The first interview was a non-custodial interview at the prosecutor’s

office, in which Johnson emphatically denied any involvement in sexual activity

with T.M.D. On her own accord, T.M.D. subsequently recorded a conversation


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Case No. 16-13-07, 16-13-08


with Johnson during which he made certain admissions relative to the allegations.

As a result, Mr. Latham conducted a custodial interview with Johnson a week later

at the Wyandot County Sheriff’s Office. This time, Johnson admitted to having a

sexual relationship with T.M.D., however Johnson claimed the sex was consensual

and began when T.M.D. was fifteen. Johnson also admitted that much of the sex

was unprotected.

       {¶18} After listening to the evidence and the arguments of counsel, the trial

court discussed the relevance of the factors enumerated in R.C. 2950.09(B)(2) on

the record, and stated the following:

       The Court finds by clear and convincing evidence after
       considering the relevant factors in 2950.09, including any
       additional behavioral characteristics that contribute to the
       offender’s conduct contained in (j), that again by clear and
       convincing evidence, the defendant is a sexual predator and is so
       designated.

       Towards this finding the Court states defendant was much older
       than his victim. The abuse commenced when she was a child.
       He was an adult. And the role as a parent to his victim, the
       relationship with her facilitated the offenses.

       Defendant possesses a criminal record which contains two
       felonies; one involving a firearm and one involved aggravated
       trafficking in drugs.

       Defendant did not do well while on supervision, violated his
       supervision numerous times and shown an unwillingness to
       conform his behavior.

       The violations occurred over a period of years and there was a
       demonstrated pattern of abuse.

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Case No. 16-13-07, 16-13-08



      The unprotected sex defendant engaged in with his victim shows
      an additional disregard for his victim’s health and well-being.
      Putting the victim on birth control without her mother’s
      knowledge also shows a disregard for his victim’s health and
      well-being because she was a child when this occurred.

      The victim in her impact statement claimed defendant forced
      her to have sex, threatened her not to tell anyone and, on
      occasion, used drugs to impair her judgment. The first two
      claims are corroborated to some degree by the conversation [the]
      victim had with the defendant wherein she told him “you raped
      me” and his response was to worry about what would happen to
      the family if the facts were revealed. Rape, even in the nonlegal
      sense, is never envisioned as a consensual event.

      Defendant did not need multiple victims as he was able to fill his
      sick desire with just one scared victim by abusing her on
      multiple occasions over multiple years.

      Defendant supplied drugs to the victim to assist him in impairing
      her judgment, judgment that was already immature because of
      the victim’s age.

      Defendant has a long extensive history of drug abuse. Defendant
      showed little remorse, blamed his victim and took little
      responsibility.

      Given defendant’s history, his attitude toward his crime, the law,
      his victim, the fact the defendant took the opportunity that was
      presented to him, the Court cannot now envision that the
      defendant will conform his behavior to one of respect for the law
      and respect for individuals, particularly children he may
      encounter in the future.

(Tr. at 36-38). Notably, the trial court reiterated these findings in its judgment

entry designating Johnson as a sexual predator.



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      {¶19} In challenging the trial court’s sexual predator designation, Johnson

contends that there was a lack of evidence demonstrating that he is likely to

commit future offenses. Johnson points to the fact that there was only one victim

in this case and that he had no prior record of sexually oriented offenses.

However, in making this argument, Johnson overlooks the fact that the legislature

drafted the factors in R.C. 2950.09(B)(2) to assist a court in determining an

offender’s likelihood of recidivism. See State v. Thompson, 92 Ohio St.3d 584,

2001-Ohio-1288. The trial court is given broad discretion in deciding how much

weight, if any, to give to each of the factors. Id. Moreover, the court may classify

an offender as a sexual predator “even if only one or two statutory factors are

present,” if in its consideration of the relevant factors the totality of the

circumstances clearly and convincingly indicate a likelihood of recidivism. State

v. Randall, 141 Ohio App.3d 160, 166 (11th Dist. 2001).

      {¶20} Here, the trial court discussed several of the enumerated factors

relative to the evidence in the record and determined that the likelihood of Johnson

recidivating warranted the sexual predator designation. In addition, our review of

the record reveals that the findings of the trial court are supported by some

competent, credible evidence. Therefore, we find no error in the trial court’s

designation of Johnson as a sexual predator.




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       {¶21} Accordingly, the assignment of error is overruled and the judgments

of the trial court are affirmed.

                                                            Judgments Affirmed

PRESTON, P.J. and ROGERS. J., concur.

/jlr




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