State of Ohio v. Daniel J. Marker, Sr.

SUPREME COURT CASES

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State: Ohio

Court: Ohio Southern District Court

Docket No: 1999-Ohio-853

Case Date: 09/01/1999

Plaintiff: State of Ohio

Defendant: Daniel J. Marker, Sr.

Preview:COURT OF APPEALS
THIRD APPELLATE DISTRICT
SENECA COUNTY

STATE OF OHIO PLAINTIFF-APPELLEE                   CASE NO. 13-99-05
v.

DANIEL J. MARKER, SR.              O P I N I O N  DEFENDANT-APPELLANT
CHARACTER OF PROCEEDINGS: Criminal appeal from Common Pleas Court JUDGMENT: Judgment affirmed DATE OF JUDGMENT ENTRY:  September 1, 1999

ATTORNEYS:
  MR. JONATHAN G. STOTZER   Attorney at Law  Reg. No. 0024868   111 West Center Street
P.O. Box 309   Fostoria, Ohio 44830  For Appellant
  MR. KENNETH EGBERT   Prosecuting Attorney  Reg. No. 0042321   MMR. DEREK W. DEVINE   Reg. No. 00062488   81 Jefferson Street Tiffin, Ohio  44883   For Appellee

HADLEY, J.  Defendant-Appellant, Daniel J. Marker Sr. ("Appellant"), appeals the decision of the Seneca County Court of Common Pleas adjudicating him to be a sexual predator pursuant to R.C. 2950.09.  For the following reasons, we affirm the judgment of the trial court.
On April 25, 1985, Appellant was found guilty of two counts of attempted rape. While serving his term in prison, the Ohio Department of Rehabilitation and Corrections recommended that Appellant be classified as a sexual predator pursuant to R.C. 2950.09.
A sexual predator hearing was held on February 16, 1999, in the Seneca County Court of Common Pleas.  Based upon the information gathered at the hearing, the trial court entered judgment on February 19, 1999.  The trial court found Appellant was a sexual predator and thus ordered him to comply with the reporting requirements set forth in R.C. 2950.03.
Appellant now appeals, asserting four assignments of error.

ASSIGNMENT OF ERROR NO. I
The Defendant was improperly denied his constitutional rights to confrontation of witnesses and evidence, under Art. 1 Sec. 10 of the Ohio Constitution, and the Sixth Amendment to the United States Constitution, by the introduction of improper hearsay not subject to any exception, which evidence if properly excluded would have left the state with insufficiently presented evidence to sustain their burden of proof.  [sic]
Appellant asserts in his first assignment of error that the trial court erred during the classification hearing by admitting into evidence certain testimony of the prosecution's only witness.  Appellant claims that, but for the erroneous admission, the result of the hearing would have been different.
In the case at bar, the only evidence presented by the State of Ohio was the testimony of Mr. Jerome Kiser, of the Seneca County Prosecutor's Office.  Kiser investigated and prosecuted Appellant for the crimes for which he is now incarcerated. At the hearing, Kiser testified in detail about one of the attempted rapes committed by Appellant.  Kiser also testified regarding the victim's emotional and physical well-being before and after the alleged attack, as well as several of Appellant's past convictions for non-sexually related offenses.  Appellant now alleges that the trial court erred in admitting this testimony into evidence. For the following reasons, we do not agree.
The Supreme Court of Ohio in State v. Cook (1998), 83 Ohio St.3d 404, held that a sexual predator determination hearing is similar to a sentencing or a probation hearing in that it is well-settled that the Ohio Rules of Evidence do not strictly apply. Id. at 425.  The Court further noted that a sexual predator determination is intended to determine the offender's status, not to determine the guilt or innocence of the offender.  Id.  Thus, the Court concluded that reliable hearsay may be relied upon by the trial judge in deciding whether to classify an offender as a sexual predator.  Id.
In the case before us, we find that Kiser's testimony was sufficiently reliable and trustworthy and, thus, on the authority of Cook, supra, we find no error in the trial court's decision to allow the testimony into evidence.  We do note, however, that the better practice would have been for the State to have relied upon some evidence other than the testimony of the former prosecuting attorney.  For instance, a pre-sentence investigation report is intrinsically unbiased, reliable, and trustworthy, and is an excellent alternative to having the former prosecuting attorney testify at the hearing.  Nonetheless, we find no substantial error in the trial court's decision to allow Kiser's testimony into evidence.
Accordingly, Appellant's first assignment of error is without merit and is overruled.
ASSIGNMENT OF ERROR NO. II

The trial court erred in overruling the Appellants motion for
dismissal of the sexual predator status hearing on the ground

that it violated collateral estoppel.  [sic]
Appellant asserts in his second assignment of error that the trial court erred in failing to dismiss the sexual predator hearing.  Specifically, Appellant maintains that the hearing should have been dismissed on the grounds that any further inquiry into whether he was likely to commit a future offense violated the doctrine of collateral estoppel.
We first note that the determination of whether res judicata applies is a question of law which this Court decides de novo, without any deference to the trial court. State v. Losey (June 3, 1998), Athens App. No. 97CA43, unreported. The legal doctrine of res judicata is to assure an end to litigation, and to prevent a party from being vexed twice for the same cause.  LaBarbera v. Batsch (1967), 10 Ohio St.2d 106; Deaton v. Burney (1995), 107 Ohio App.3d 407.
Res judicata consists of the following two related concepts: (1) claim preclusion (estoppel by judgment) and, (2) issue preclusion (collateral estoppel). New Winchester Gardens, Ltd. v. Franklin Cty. Bd. of Revision (1997), 80 Ohio St.3d 36, 41.  Claim preclusion bars relitigation of the same cause of action between the same parties or their privies.  Issue preclusion bars relitigation of issues "actually litigated" and "directly determined" in a previous action between the same parties or those in privity with the original parties.  New Winchester Gardens, 80 Ohio St.3d at 41.
In the case before us, Appellant bases his collateral estoppel argument on the following provision as set forth in R.C. 2929.12, as it existed prior to July 1, 1996:

(A) In determining the minimum term of imprisonment to be imposed for a felony for which an indefinite term of imprisonment is imposed, the court shall consider the risk that the offender will commit another crime and the need for protecting the public from the risk, the nature and circumstances of the offense; the victim impact statement prepared pursuant to section 2947.051 [2947.05.1] of the Revised Code, if a victim impact statement is required by that section; any statement by the victim pursuant to Section 2930.14 of the Revised Code; and the history, character, and condition of the offender and his need for correctional or rehabilitative treatment.
(Emphasis added.)  Thus, pursuant to former R.C. 2929.12(A), prior to imposing a sentence upon an offender, a trial court was required to consider the likelihood that that offender would commit another crime in the future, as well as the need for protecting the public from that risk.
R.C. 2950.09(C)(2) states that after reviewing all of the testimony, evidence, and the factors listed in R.C. 2950.09(B)(2), the court "shall determine by clear and convincing evidence whether the offender is a sexual predator."  R.C. 2950.01(E) defines the term "sexual predator" as follows:

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.
Pursuant to the foregoing provision, in determining whether an offender should be adjudicated a sexual predator, a trial court is required to determine whether an offender is likely to engage in the future in one or more sexually oriented offenses.
In the case now before us, Appellant asserts that the application of former
R.C. 2929.12(A) to his original sentencing hearing barred any further inquiry by the State into whether he was likely to engage in the future in one or more sexually oriented offenses.  We do not agree.
As we previously stated, the doctrine of collateral estoppel solely precludes the litigation of issues that have been actually litigated in the past.  Appellant was brought before the trial court on February 16, 1999, in order to determine, for the first time, whether to classify him as a sexual predator pursuant to R.C. 2950.  Thus, given that the issue had never before been actually litigated, the doctrine of collateral estoppel has no application or relevance to the case at bar. Further, pursuant to former R.C. 2929.12(A), the likelihood of whether an offender will commit another crime in the future is merely a factor to be taken into consideration by a trial court prior to imposing a sentence upon an offender.
Accordingly, we find that Appellant's second assignment of error is not well-taken and is overruled.

ASSIGNMENT OF ERROR NO. III
The trial court erred in overruling the Appellants motion for dismissal of the sexual predator status hearing on the ground that it violated Article I Section 1 of the Ohio Constitution as an invalid use of the state's police power, that it is violative of unduly burdensome, oppressive, and interferes with the private rights if the citizens beyond what is necessary.  [sic]
In his third assignment of error, Appellant contends that R.C. Chapter 2950 violates Article I, Sections 1 and 16 of the Ohio Constitution.  In particular, Appellant contends that the statute is an invalid use of the state's police power in that it is oppressive upon individuals and is an unreasonable and arbitrary infringement upon an individual's privacy rights.
In the case before us, Appellant relies upon the decision of the Eleventh District Court of Appeals in State v. Williams (Feb. 2, 1999), Lake App. No. 97-L

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