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State v. Johnson

Court of Appeals of Ohio, Eighth District, Cuyahoga

January 11, 2018


         Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-16-610780-A

          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.



         {¶1} 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 not merge.

         I. Sexual Predator Classification

         {¶2} 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 future.

         {¶3} 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 1264, syllabus.

         {¶4} 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.

         {¶5} 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.

         {¶6} 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 masturbation."

         {¶7} 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 five years.

         {¶8} 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 ...

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