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State v. Dunaway3/10/2003
Defendant-appellant, Timothy Dunaway, appeals the decision of the Butler County Court of Common Pleas classifying him as a sexual predator. Appellant also appeals his sentence for the underlying offense of sexual battery, specifically the trial court's imposition of court-appointed counsel costs, restitution, and a fine. We affirm the trial court's decision.
In June 2001, appellant was indicted on two counts of sexual battery in violation of R.C. 2907.03(A)(5), a third-degree felony, and one count of domestic violence in violation of R.C. 2919.25(A), a first-degree misdemeanor. The indictment stemmed from allegations that he engaged in sexual conduct with his sixteen-year-old stepdaughter and caused or attempted to cause physical harm to his wife. Appellant subsequently pled guilty to one count of sexual battery and was convicted by the trial court. The other count of sexual battery and the domestic violence count were merged into appellant's sexual battery conviction.
The trial court held a sentencing hearing in July 2001 and a sexual predator hearing in November 2001. In a November 2001 judgment entry, the trial court sentenced appellant to four years in prison and ordered him to pay restitution, a $500 fine, the costs of prosecution, and counsel costs. The trial court also found appellant to be a sexual predator.
Appellant now appeals the trial court's decision classifying him as a sexual predator as well as its imposition of counsel costs, restitution, and a fine. Appellant assigns three errors.
Assignment of Error No. 1:
"THE TRIAL COURT ERRED IN FINDING DEFENDANT-APPELLANT TO BE A SEXUAL PREDATOR."
In this assignment of error, appellant argues that the state did not prove by clear and convincing evidence that appellant is a sexual predator.
In determining whether an offender should be classified as a sexual predator under R.C. Chapter 2950, the trial court must find, by clear and convincing evidence, that an individual 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. R.C. 2950.01(E); State v. McCullough, Fayette App. No. CA2001-02-004, 2001-Ohio-8703. Given that appellant pled guilty to sexual battery, a sexually oriented offense, the issue for the trial court was whether there was clear and convincing evidence that appellant was likely to commit another sexually oriented offense in the future.
Clear and convincing evidence is that evidence "which will produce in the mind of the trier of facts a firm belief or conviction as to the facts sought to be established." Cross v. Ledford (1954), 161 Ohio St. 469, 477; see, also, State v. Eppinger, 91 Ohio St.3d 158, 164, 2001-Ohio-247. While clear and convincing evidence is "more than a mere preponderance" of the evidence, it is less than that which constitutes evidence "beyond a reasonable doubt." Id. at 164, citing Cross, 161 Ohio St. at 477.
When making a determination as to whether a defendant is a sexual predator, 2950.09(B)(2) requires the trial court to consider all relevant factors, including, but not limited to, all of the following:
"(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 alco
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