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State v. Oberacker1/16/2003
JUDGMENT: Affirmed in part and Remanded.
. Defendant-appellant Daniel Oberacker ("Oberacker"; d.o.b. August 3, 1969) appeals on a delayed basis from the trial court finding him to be a sexual predator. For the reasons adduced below, we affirm in part and remand in part.
. A review of the record on appeal indicates that Oberacker pled guilty on February 14, 2000 to two counts of Rape (a first degree felony under the pre-Senate Bill 2 version of R.C. 2907.02), committed over a period of several years, between 1992 and 1995, and which involved two adolescent female victims who were between the ages of eleven and twelve when the offenses first began. Appellant concedes that one of the victims was the daughter of his then live-in girlfriend (this victim's initials are "J.R."), and the other victim was his niece (this victim's initials are "J.S."). See appellant's brief at 1. As part of the plea bargain the court nolled four additional counts of Rape involving one of the victims.
. The presentence investigation report indicated that Oberacker, despite having a history of driving under the influence convictions and admitting to drinking a six-pack of beer per day on two days each week, denied having a substance abuse problem or any mental health problems, denied responsibility or guilt for the offenses, and denied being attracted to younger women.
. Oberacker was sentenced to 8 to 25 years on each of the two counts with the sentences to run consecutive to one another. The court also determined at the sentencing hearing, subsequent to evidence being taken, that Oberacker was a sexual predator and subject to registration requirements.
. On April 18, 2000 Oberacker filed a notice of appeal from the sexual predator classification, arguing, in part, that the court had not provided notice of the sexual predator classification hearing. This court reversed and remanded the matter on the grounds that the trial court had indeed failed to provide Oberacker with notice of the hearing. See State v. Oberacker (Mar. 22, 2001), Cuyahoga App. No. 77876, 2001 Ohio App. LEXIS 1300.
. On remand, the trial court granted Oberacker's motion to have an independent psychological assessment performed and his motion to receive copies of the entire criminal file.
. On January 17, 2002 the trial court conducted the second sexual predator classification hearing.
. At this second hearing, defense counsel stated that the defense had been given adequate time and notice within which to prepare for the hearing, that the defense waived any formalities and wanted to proceed. Tr. 4-5.
. The state proffered the following five exhibits at the hearing: (1) the presentence report which was prepared for the original 2000 sentencing hearing; (2) a copy of the transcript from the original sexual predator classification hearing, which contains therein testimony from the elder victim, namely J.S.; (3) a statement authored by the younger victim, J.R.; (4) the police statement authored by the elder victim, J.S.; and, (5) the psychiatric report on Oberacker which was prepared on January 2, 2002 by Dr. Aronoff of the Court's Psychiatric Clinic. These exhibits, without objection by the defense, were admitted by the court into evidence.
. Dr. Aronoff's report indicated, in part, the following: (1) Oberacker's intelligence quotient was tested in April of 2000 as being 126, which score was within the 96th percentile of those other individuals completing the test; (2) in addition to alcohol use, Oberacker admitted to a history of drug use and experimentation over the years, some of it intravenous, including cocaine, marijua
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