Court of Appeals of Ohio, Eighth District, Cuyahoga
Criminal Appeal from the Cuyahoga County Court of Common
Pleas Case Nos. CR-16-610725-B and CR-17-614446-A
ATTORNEY FOR APPELLANT Erin R. Flanagan Erin R. Flanagan,
ATTORNEYS FOR APPELLEE Michael C. O'Malley Cuyahoga
County Prosecutor By: Denise J. Salerno Daniel T. Van
Assistant Prosecuting Attorneys
BEFORE: S. Gallagher, J., E.A. Gallagher, A.J., and Stewart,
JOURNAL ENTRY AND OPINION
C. GALLAGHER, J.
Israel Lugo appeals his being classified as a sexual predator
under the version of R.C. 2950.09 in effect at the time of
the offense. He appeals no other aspect of his convictions
for rape and the unrelated vehicular manslaughter.
According to the prosecutor, in 2004, the victim blacked out
from her voluntary, but excessive, consumption of alcohol or
drugs. She awoke in the backseat of her locked car the next
morning wearing nothing but a sweatshirt. A condom wrapper
was found on the floorboard. Unable to recall the events of
the previous evening, the victim immediately sought medical
attention, during which time DNA evidence was preserved.
The DNA was eventually tested, and Lugo was identified.
Lugo pleaded guilty to rape under R.C. 2907.02(A)(1)(c), in
which an offender is prohibited from engaging in sexual
conduct with another when the offender knows the other
person's ability to resist or consent is substantially
impaired because of mental or physical condition. Lugo told
investigators that he does not recall the encounter because
he was under the influence of alcohol and drugs at the time.
Former R.C. Chapter 2950, known as "Megan's
Law," created three classifications for sexual
offenders: sexually oriented offender, habitual sex offender,
and sexual predator. The state concedes that the second
classification, habitual sex offender, does not apply in this
case. Former R.C. 2950.01(E) defined a "sexual
predator" as "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." In making a sexual predator
determination, the trial court was required to consider all
relevant factors, including, but not limited to the factors
listed in former R.C. 2950.09(B)(2):
(a) The offender's age;
(b) The offender's prior criminal record regarding all
offenses, including, but not limited to, all sexual offenses;
(c) The age of the victim of the sexually oriented offense
for which sentence is to be imposed;
(d) Whether the sexually oriented offense for which sentence
is to be imposed ...