Court of Appeals of Ohio, Eighth District, Cuyahoga
Appeal from the Cuyahoga County Court of Common Pleas Case
ATTORNEY FOR APPELLANT Thomas A. Rein.
ATTORNEYS FOR APPELLEE Michael C. O'Malley Cuyahoga
County Prosecutor BY: Daniel T. Van Assistant Prosecuting
BEFORE: E.T. Gallagher, P.J., Laster Mays, J., and
JOURNAL ENTRY AND OPINION
T. GALLAGHER, P.J.
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
1. The trial court erred by proceeding with the sexual
predator hearing after counsel raised the issue of Kahn's
2. The trial court erred when it classified Kahn as a sexual
We find no merit to the appeal and affirm the trial
Facts and Procedural History
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.
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
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.
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.
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."
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.
Kahn now appeals the trial court's judgment.
Law and Analysis
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.
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.
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.
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
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.).
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.
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.
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 ¶ 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