Court of Appeals of Ohio, Eighth District, Cuyahoga
Appeal from the Cuyahoga County Court of Common Pleas Case
ATTORNEY FOR APPELLANT Ruth R. Fischbein-Cohen
ATTORNEYS FOR APPELLEE Michael C. O'Malley Cuyahoga
County Prosecutor Edward R. Fadel Assistant County Prosecutor
BEFORE: Stewart, J., Kilbane, P.J., and McCormack, J.
JOURNAL ENTRY AND OPINION
J. STEWART, JUDGE.
Defendant-appellant Marcellus Johnson pleaded guilty to
first-degree felony counts of aggravated burglary, rape, and
kidnapping. The court classified Johnson as a sexual predator
under the former Megan's Law (the rape occurred in 1997).
The court imposed ten-year sentences on each count, with the
agreement of the parties that the offenses were not allied
and did not merge. The court ordered that the sentences for
aggravated burglary and rape be served concurrently, but
consecutive to the kidnapping count, for a total of 20 years
in prison. On appeal, Johnson argues that the court erred by
classifying him a sexual predator and that the court erred as
a matter of law by refusing to merge the rape and kidnapping
counts despite defense counsel's agreement that they did
Sexual Predator Classification
Johnson first argues that the court erred by classifying him
as a sexual predator because there was no evidence that he
was likely to commit a sexually oriented offense in the
Johnson committed his offenses in June 1997. For offenses
committed at that time, sexually oriented offenders are
subject to the classification and registration requirements
under Megan's Law, as codified in former R.C. 2950.01 et
seq. That law creates three classifications for sexual
offenders: sexually oriented offender, habitual sex offender,
and sexual predator. See former R.C. 2950.09. A
"sexual predator" is "a person who 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" Former R.C.
2950.01(E). A sexual predator determination is made by the
trial judge who, after reviewing all of the testimony and
considering various factors, "shall determine by clear
and convincing evidence whether the offender is a sexual
predator." State v. Blake-Taylor, 8th Dist.
Cuyahoga No. 100419, 2014-Ohio-3495, ¶ 4, citing former
R.C. 2950.09(B)(4). We review a sexual predator
classification under the civil manifest weight of the
evidence standard: if the judgment is supported by some
competent, credible evidence going to all the essential
elements of the case, it will not be reversed. State v.
Wilson, 113 Ohio St.3d 382, 2007-Ohio-2202, 865 N.E.2d
We have long held that Megan's Law is not a "one
strike and you're out" law such that a single
conviction for a sexually oriented offense is ipso facto
proof that an offender is a sexual predator. State v.
Ward, 130 Ohio App.3d 551, 561, 720 N.E.2d 603 (8th
Dist.1999). Nevertheless, the particular facts of a single
offense could, if egregious enough, by themselves be
compelling proof that an offender is likely to commit another
sexually oriented offense in the future. State v.
Eppinger, 91 Ohio St.3d 158, 167, 2001-Ohio-247, 743
N.E.2d 881; State v. Bibbs, 8th Dist. Cuyahoga No.
83955, 2004-Ohio-5604, ¶ 53.
The presentence investigation report viewed by the trial
judge outlined the circumstances of the offense: Johnson
broke into the victim's home while she was asleep and
raped her, compelling her to submit by threatening to kill
her four-year-old child who was in the bed with her.
The court also examined Johnson's institutional prison
record. One notation in Johnson's institutional report
summary stated that Johnson has an "ongoing"
masturbation problem. In a six-year period, there were at
least 39 instances where prison personnel saw Johnson
masturbating in his cell and other areas of the prison.
Several notes indicate that Johnson appeared to be
intentionally masturbating in a display for the prison
guards. One note stated that Johnson was attending a
religious service in the chapel and "pulled out his
penis and was masturbating at one of the female religious
volunteers." Another note stated that as Johnson was
being processed for discipline relating to masturbation, he
made a lewd remark to the correctional officer and pulled his
pants down to expose himself to her. On one occasion, Johnson
threatened his cell mate with a pen and then pulled out his
penis and attempted to grab his cellmate and "jack off
on him. Johnson's prison record also showed that he gave
a prison guard a "kite" stating that she aroused
him and that "sometimes he acts out on it in the form of
Johnson also completed a Static-99 assessment, an actuarial
assessment that predicts a sexual offenders likelihood of
reoffending. He was given a score of "4, " which
placed him in the "above average" risk category.
The examiner scoring the results gave Johnson a predicted
sexual recidivism rate of 11.0, meaning that for offenders
with the same score, 110 out of 1000 will reoffend within
Johnson maintains that despite a lengthy criminal history (56
arrests), his only conviction for a sexual offense is the
rape count in the present case and that he has not been
convicted of any criminal sexual offenses since committing
the rape. This ...