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State v. Offenberger

Court of Appeals of Ohio, Fourth District

May 22, 2007

State of Ohio, Plaintiff-Appellee,
Trent Offenberger, Defendant-Appellant.

David H. Bodiker, State Public Defender, and Jeremy J. Masters, Assistant State Public Defender, Columbus, Ohio, for Appellant.

James E. Schneider, Washington County Prosecuting Attorney, and Alison L. Cauthorn, Assistant Washington County Prosecuting Attorney, Marietta, Ohio, for Appellee.


William H. Harsha, Judge

{¶1} After Trent Offenberger pled guilty to the attempted rape of his 12-year-old daughter, the trial court determined he was a sexual predator. In order to make that determination, the court had to find by clear and convincing evidence that Offenberger was guilty of committing a sexually oriented offense and that he is likely to engage in similar conduct in the future. In this appeal, Offenberger contests the second finding on the basis it is not supported by clear and convincing evidence.

{¶2} R.C. 2950.09(B)(3) provides a nonexclusive list of factors the court must consider in this context. First, Offenberger contests the court's finding that his conduct was part of a demonstrated pattern of abuse because he has only this single instance of sexual misconduct on his record. He misconstrues the meaning of terms. A pattern of abuse may be demonstrated by either a series of convictions for separate offenses or a single situation in which the conduct persists repeatedly over an extended period of time. Here, the record indicates Offenberger committed multiple instances of sexual misconduct against his daughter and they occurred over an extended period of time.

{¶3} Offenberger also contends the court determined his status by looking solely at the nature of this offense. He overlooks the fact the record contains plenty of evidence to support the other statutory indicators the court must use in its analysis of potential recidivism. For instance, the approximately 20-year age disparity between him and the victim, the father-daughter relationship with the victim in which Offenberger abused his position of trust and authority, and his fairly lengthy criminal record, which shows his disregard for the law, all support a conclusion that Offenberger is likely to reoffend. Because the presence of even one or two of the factors may be sufficient to support a finding of potential recidivism, Offenberger's argument that the court relied solely on the nature of this offense to determine his status is meritless. Accordingly, we affirm the trial court's judgment.

I. Facts

{¶4} In September 2005, the Washington County Grand Jury returned an indictment charging Offenberger with one count of rape and gross sexual imposition (GSI) involving his twelve-year-old daughter, in violation of R.C. 2907.02(A)(1)(b) and 2907.05(A)(4) respectively. After initially pleading not guilty to the charges, Offenberger subsequently pled guilty to attempted rape in exchange for the state's dismissal of the GSI charge. In entering his guilty plea, Offenberger stipulated to the factual basis proffered by the prosecutor in support of the guilty plea, i.e., he agreed to the correctness of statements both by the victim that he fondled her breasts and vaginal area and engaged in digital and penile penetration of her at their residences in Marietta and Belpre until August 2005, and his own taped statements to the victim's mother admitting he had inserted his fingers into the victim's vagina. After accepting Offenberger's guilty plea, the trial court ordered the preparation of a presentence investigation report ("PSIR") and scheduled a combined sentencing and sexual offender status hearing for April 2006.

{¶5} According to the PSIR, the victim disclosed in an interview with a sheriff's detective and a children's services caseworker that she had been "digitally penetrated, fondled, and penetrated in her vaginal area by the defendant's penis" beginning when she was nine years old and continuing until she was 12 years old.

{¶6} In his version of the offense contained in the PSIR, Offenberger denied sexually abusing the victim. He stated that the victim developed physically before puberty, the victim's mother allowed her to wear skimpy clothes and make-up that made her look older than she was, and the victim "thinks too much about boys". He claimed the victim made the sexual abuse allegations against him as retaliation because he was the one who disciplined her. He also claimed the victim's mother and grandmother were behind the sexual abuse allegations because he had sex with the victim's mother's sister when she was 14 years old. Offenberger contended he had made the taped statements to the victim's mother admitting that he fondled the victim in order to pacify the victim's mother and tell her what she wanted to hear so they would get back together as a couple.

{¶7} At the April 2006 hearing, the trial court sentenced Offenberger to four years in prison. In determining Offenberger's sexual offender status, the trial court found: (1) he was 31 years old at the time of the hearing; (2) he had a lengthy record both as a juvenile from 1988 to 1992 and as an adult from 1994 to 2002; (3) the victim was nine years old when the sexual abuse started and twelve years old when it stopped; (4) the offense did not involve multiple victims; (5) there was no evidence Offenberger used drugs or alcohol to commit the offense; (6) his previous record indicates that on at least one occasion he did not complete probation but was sentenced to an institution as a juvenile; (7) as to mental illness or disability, Offenberger appears to be a slow learner; (8) the nature of the offense involved touching, digital penetration, and perhaps penile penetration; (9) the conduct at issue involved a demonstrated pattern of abuse; (10) he did not display cruelty or threats of cruelty during the commission of the offense; and (11) no additional behavioral characteristics contributed to his conduct. The trial court concluded that Offenberger is likely to engage in the future in one or more sexually oriented offenses, and it adjudicated him a sexual predator. In support, the trial court pointed to: the age disparity between Offenberger and the victim, a continuing and demonstrated pattern of abuse against the victim in this case, and Offenberger's previous record, which indicates he continued to commit felonies as an adult after he failed to complete probation and was sentenced to an institution as a juvenile offender.

II. Assignment of Error

{¶8} Offenberger appeals his sexual predator adjudication, raising the following ...

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