[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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Case No. 16-13-07, 16-13-08
{¶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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Case No. 16-13-07, 16-13-08
(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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Case No. 16-13-07, 16-13-08
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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Case No. 16-13-07, 16-13-08
{¶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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