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State v. Kahn

Court of Appeals of Ohio, Eighth District, Cuyahoga

June 1, 2017

STATE OF OHIO PLAINTIFF-APPELLEE
v.
MICHAEL KAHN DEFENDANT-APPELLANT

         Civil Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-91-260993-ZA

          ATTORNEY FOR APPELLANT Thomas A. Rein.

          ATTORNEYS FOR APPELLEE Michael C. O'Malley Cuyahoga County Prosecutor BY: Daniel T. Van Assistant Prosecuting Attorney

          BEFORE: E.T. Gallagher, P.J., Laster Mays, J., and Celebrezze, J.

          JOURNAL ENTRY AND OPINION

          EILEEN T. GALLAGHER, P.J.

         {¶1} Defendant-appellant, Michael Kahn ("Kahn"), appeals the trial court's judgment classifying him a sexual predator under Megan's Law. He raises two assignments of error:

1. The trial court erred by proceeding with the sexual predator hearing after counsel raised the issue of Kahn's competency.
2. The trial court erred when it classified Kahn as a sexual predator.

         {¶2} We find no merit to the appeal and affirm the trial court's judgment.

         I. Facts and Procedural History

         {¶3} Kahn has a history of sex crimes convictions. In 1977, he was convicted of attempted gross sexual imposition ("GSI") after he sexually molested a four-year-old girl. In 1980, he was convicted of GSI after sexually molesting a ten-year-old girl. In 1989, Kahn was convicted of felonious assault. It is not clear whether his victim was male or female. Nevertheless, in 1991, he pleaded guilty to rape of an adult woman and was sentenced to 25 years in prison. In 2001, while Kahn was incarcerated, the court ordered a sexual predator classification hearing to determine if Kahn was a sexual predator. At defendant's request, the hearing was continued until after his release in 2016.

         {¶4} Dr. Michael Aronoff, of the court psychiatric clinic, evaluated Kahn for the sexual predator hearing in 2016. In his report, Dr. Aronoff reported that Kahn was "actively psychotic" during the clinical interview and appeared "distracted by auditory hallucinations." Therefore, Dr. Aronoff concluded that the information Kahn provided during the interview was "of questionable validity."

         {¶5} Nevertheless, Dr. Aronoff based his opinion on numerous sources outside of the interview. He referred to a record that indicated Kahn was sexually molested as a child. Other records showed that Kahn was born eight weeks prematurely in 1956 and that his mother took medications during pregnancy to prevent miscarriage. He was only two pounds 13 ounces at the time of his birth.

         {¶6} At age 17, Kahn began living in a group home operated by the Parent Volunteer Association. His father indicated in a report that Kahn engaged in sexual misconduct and aggressive behavior in the home. During much of his life, Kahn either lived in a group home or in prison. He also received considerable psychological testing, numerous diagnoses, and treatment. In 1982, he was diagnosed with "conduct disorder, undersocialized, non-aggressive, and mild mental retardation." Dr. Aronoff had previously diagnosed Kahn as having pedophilia in 2001, and a psychologist at Mount Sinai Hospital diagnosed him with pedophilia in 1980. Kahn had also been diagnosed with various depressive disorders, personality disorders, developmental disorders, and schizoaffective disorder among other diagnoses.

         {¶7} Based on "subjective and objective measures of sexual interest, " Dr. Aronoff concluded that Kahn "has a significant sexual interest in young girls aged 8 to 10 years" and that he "appears to have a sexual interest in females aged 2 to 4 years, adolescent males and females, and adult females."

         {¶8} At the sexual predator hearing, defense counsel raised concerns about Kahn's competency. The state argued that because sexual predator classifications are civil in nature, the court was not required to hold a hearing to determine Kahn's competency. The trial court agreed and proceeded without a competency hearing. At the conclusion of the hearing, the court found, by clear and convincing evidence, that Kahn was a sexual predator.

         {¶9} Kahn now appeals the trial court's judgment.

         II. Law and Analysis

         A. Competency

         {¶10} In the first assignment of error, Kahn argues the trial court erred by proceeding with the sexual predator hearing after his trial counsel raised concerns regarding his competency.

         {¶11} A criminal defendant may not stand trial if he is deemed legally incompetent. State v. Berry, 72 Ohio St.3d 354, 359, 650 N.E.2d 433 (1995). R.C. 2945.37(B), which governs a criminal defendant's competency to stand trial, provides that a common pleas court must hold a competency hearing "[i]n a criminal action" if the prosecutor or defense counsel raises the issue of competency.

         {¶12} However, sexual predator hearings are civil in nature, not criminal. State v. Jones, 93 Ohio St.3d 391, 754 N.E.2d 1252 (2001) (Lundberg Stratton, J, concurring in part, dissenting in part); State v. Kendrick, 10th Dist. Franklin No. 98AP-1305, 1999 Ohio App. LEXIS 4622 (Sept. 30, 1999). Because sexual predator hearings are civil proceedings, R.C. 2945.37, which applies only to "criminal actions, " is inapplicable.

         {¶13} Kahn nevertheless argues that his right to due process required the court to hold a competency hearing and cites State v. Chambers, 151 Ohio App.3d 243, 2002-Ohio-7345, 783 N.E.2d 965 (11th Dist), to support his argument. In Chambers, the Eleventh District concluded that a convicted sex offender has the right to a competency hearing before being classified as a sexual predator under former R.C. Chapter 2950. In reaching this conclusion, the Chambers court analogized sexual predator hearings to probation and parole violation hearings and noted that the United States Supreme Court held that a defendant's due process rights at such hearings include the right to confront and cross-examine adverse witnesses. Id. at ¶ 10, citing Morrissey v. Brewer, 408 U.S. 471, 489, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972), and Gagnon v. Scarpelli, 411 U.S. 778, 782, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973).

         {¶14} The Chambers court reasoned that a defendant's ability to be heard and confront adverse witnesses "may be rendered null if the defendant is not competent to understand and to participate in or to assist counsel in participating in the proceedings." Id. at ¶ 10, quoting State v. Qualls, 50 Ohio App.3d 56, 58, 552 N.E.2d 957 (10th Dist.1988) (holding that the defendant was, as a matter of due process, entitled to a competency hearing before his probation revocation hearing.).

         {¶15} We find the Chambers court's reliance on cases discussing the scope of a defendant's due process rights in probation and parole violation cases is misplaced in the context of sexual predator hearings. As the United States Supreme Court explained in Morrissey:

Whether any procedural protections are due depends on the extent to which an individual will be "condemned to suffer grievous loss." Joint Anti-Fascist Refugee Commt. v. McGrath, 341 U.S. 123, 168 [71 S.Ct. 624');">71 S.Ct. 624, 95 L.Ed. 817] (1951) (Frankfurter, J., concurring), quoted in Goldberg v. Kelly, 397 U.S. 254');">397 U.S. 254, [90 S.Ct. 1011, 95 L.Ed.2d 287] (1970). The question is not merely the "weight" of the individual's interest, but whether the nature of the interest is one within the contemplation of the "liberty or property" language of the Fourteenth Amendment. Fuentes v. Shevin, 407 U.S. 67 [92 S.Ct. 1983, 32 L.Ed.2d 287] (1972).
Once it is determined that due process applies, the question remains what process is due. It has been said so often by this [c]ourt and others as not to require citation of authority that due process is flexible and calls for such procedural protections as the particular situation demands. "Consideration of what procedures due process may require under any given set of circumstances must begin with a determination of the precise nature of the government function involved as well as of the private interest that has been affected by governmental action." Cafeteria & Restaurant Workers Union v. McElroy, 367 U.S. 886, 895 [81 S.Ct. 1743');">81 S.Ct. 1743, 6 L.Ed.2d 1230] (1961).
To say that the concept of due process is flexible does not mean that judges are at large to apply it to any and all relationships. Its flexibility is in its scope once it has been determined that some process is due; it is a recognition that not all situations calling for procedural safeguards call for the same kind of procedure.

         {¶16} In holding that a parolee's due process rights include the right to confront adverse witnesses, the Morrissey court balanced the state's interest in protecting the public from future crime against the parolee's constitutional right to liberty as guaranteed by the Fourteenth Amendment. Obviously, revocation of parole or probation results in the defendant's loss of liberty. Such is not the case in sexual predator proceedings, and Ohio Supreme Court precedent suggests the convicted sex offender's right to due process is more limited than that of a parole or probation violator. See State v. Ferguson, 120 Ohio St.3d 7, 2008-Ohio-4824, 896 N.E.2d 110.

         {¶17} In Ferguson, the court held, in part, that retroactive application of the sexual classification statute did not violate the defendant's constitutional protection against the enactment of ex post facto laws because the sexual classification statute was remedial rather than punitive. Id. at ΒΆ 29. In balancing the effect a sexual predator classification would have on the convicted sex offender against the state's interest in protecting the public, the Ferguson court noted that former R.C. Chapter 2950 was "replete with references to the legislature's intent to 'protect the safety and ...


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