State v. Thompson - Ohio Supreme Court Opinion - Ohio Supreme Court Decision

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[Cite as State v. Thompson , 92 Ohio St.3d 584, 2001-Ohio-1288]

THE STATE OF OHIO, APPELLANT, v. THOMPSON, APPELLEE.
[Cite as State v. Thompson (2001), 92 Ohio St.3d 584.]
Criminal law -- Sexual predators -- Judge must consider guidelines set out in
R.C. 2950.09(B)(2) but has discretion to determine what weight, if any,
will be assigned to each guideline -- Pursuant to R.C. 2950.09(B)(2), a
judge may also consider any other evidence deemed relevant to
determine likelihood of recidivism -- R.C. 2950.09(B)(2) does not violate
separation-of-powers doctrine.
(No. 00-1555 -- Submitted May 30, 2001 -- Decided August 22, 2001.)
APPEAL from the Court of Appeals for Montgomery County, No. 17984.
__________________
SYLLABUS OF THE COURT
1. A judge must consider the guidelines set out in R.C. 2950.09(B)(2), but the
judge has discretion to determine what weight, if any, he or she will assign
to each guideline. Pursuant to R.C. 2950.09(B)(2), a judge may also
consider any other evidence that he or she deems relevant to determining
the likelihood of recidivism.
2. Because R.C. 2950.09(B)(2) does not encroach upon the trial court's fact-
finding authority, it does not violate the separation-of-powers doctrine.
__________________

LUNDBERG STRATTON, J. Defendant-appellee, David M. Thompson, was
convicted of rape, aggravated robbery, and felonious assault. In March 1975, he
was sentenced to prison terms of four to twenty-five years for rape, four to
twenty-five years for aggravated robbery, and two to fifteen years for felonious
assault, all sentences to be served concurrently. The defendant was later paroled,
but he violated the terms of his parole and was reincarcerated. On September 24,

SUPREME COURT OF OHIO
1999, the trial court conducted a sexual predator hearing pursuant to R.C. 2950.09
due to defendant's rape conviction. The trial court found that the defendant is a
sexual predator.

The defendant appealed the trial court's sexual predator determination.
The appellate court, following its own decision in State v. White (Nov. 5, 1999),
Miami App. No. 98-CA-37, unreported, 1999 WL 1000000, held that R.C.
2950.09 violates the separation-of-powers doctrine by usurping the trial court's
fact-finding role because it prescribes what evidence trial courts must consider in
determining whether a sexual offender is likely to reoffend. Thus, the appellate
court reversed the trial court's judgment and remanded the cause with the
instruction that the trial court "may, but is not required, to consider any of the
statutory factors in R.C. 2950.09(B)(2)."

This cause is now before this court pursuant to the allowance of a
discretionary appeal.

The sole issue before this court is whether R.C. 2950.09 violates the
separation-of-powers doctrine because it encroaches upon the judiciary's fact-
finding authority. We find that it does not.

It is well settled that legislation enjoys a presumption of constitutionality.
State ex rel. Haylett v. Ohio Bur. of Workers' Comp. (1999), 87 Ohio St.3d 325,
328, 720 N.E.2d 901, 904. A statute will be given a constitutional interpretation
if one is reasonably available. State v. Keenan (1998), 81 Ohio St.3d 133, 150,
689 N.E.2d 929, 946. The constitutional presumption remains unless it is proven
beyond a reasonable doubt that the legislation is unconstitutional. State v.
Williams (2000), 88 Ohio St.3d 513, 521, 728 N.E.2d 342, 352.

The separation-of-powers doctrine implicitly arises from our tripartite
democratic form of government and recognizes that the executive, legislative, and
judicial branches of our government have their own unique powers and duties that
are separate and apart from the others. See Zanesville v. Zanesville Tel. &
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January Term, 2001
Telegraph Co. (1900), 63 Ohio St. 442, 59 N.E. 109, paragraph one of the
syllabus. The purpose of the separation-of-powers doctrine is to create a system of
checks and balances so that each branch maintains its integrity and independence.
State v. Hochhausler (1996), 76 Ohio St.3d 455, 463, 668 N.E.2d 457, 466, citing
S. Euclid v. Jemison (1986), 28 Ohio St.3d 157, 159, 28 OBR 250, 252, 503
N.E.2d 136, 138.

Under our Constitution, the General Assembly is vested with the power to
make laws. Section 1, Article II, Ohio Constitution. Its lawmaking power is
limited only by the state and federal Constitutions. Angell v. Toledo (1950), 153
Ohio St. 179, 181, 41 O.O. 217, 218, 91 N.E.2d 250, 251. The Ohio Constitution
prevents the General Assembly from exercising "any judicial power, not herein
expressly conferred." Section 32, Article II, Ohio Constitution.

Conversely, courts "possess all powers necessary to secure and safeguard
the free and untrammeled exercise of their judicial functions and cannot be
directed, controlled or impeded therein by other branches of the government."
State ex rel. Johnston v. Taulbee (1981), 66 Ohio St.2d 417, 20 O.O.3d 361, 423
N.E.2d 80, paragraph two of the syllabus, approving and following State ex rel.
Foster v. Lucas Cty. Bd. of Commrs. (1968), 16 Ohio St.2d 89, 45 O.O.2d 442,
242 N.E.2d 884, paragraph two of the syllabus. "It is indisputable that it is a
judicial function to hear and determine a controversy between adverse parties, to
ascertain the facts, and, applying the law to the facts, to render a final judgment."
Fairview v. Giffee (1905), 73 Ohio St. 183, 190, 76 N.E. 865, 867.

We start our separation-of-powers analysis by examining the language of
R.C. 2950.09(B)(2), which states:

"In making a determination under divisions (B)(1) and (3) of this section
as to whether an offender is a sexual predator, the judge shall consider all relevant
factors including, but not limited to, all of the following:

"(a) The offender's age;
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SUPREME COURT OF OHIO

"(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 involved multiple victims;

"(e) Whether the offender used drugs or alcohol to impair the victim of the
sexually oriented offense or to prevent the victim from resisting;

"(f) If the offender previously has been convicted of or pleaded guilty to
any criminal offense, whether the offender completed any sentence imposed for
the prior offense and, if the prior offense was a sex offense or a sexually oriented
offense, whether the offender participated in available programs for sexual
offenders;

"(g) Any mental illness or mental disability of the offender;

"(h) The nature of the offender's sexual conduct, sexual contact, or
interaction in a sexual context with the victim of the sexually oriented offense and
whether the sexual conduct, sexual contact, or interaction in a sexual context was
part of a demonstrated pattern of abuse;

"(i) Whether the offender, during the commission of the sexually oriented
offense for which sentence is to be imposed, displayed cruelty or made one or
more threats of cruelty;
"(j)
Any additional behavioral characteristics that contribute to the
offender's conduct." (Emphasis added.)

The appellate court held that R.C. 2950.09(B)(2) violates the separation-
of-powers doctrine because it prescribes evidence that the court must consider in
determining whether an offender is a sexual predator. We disagree with this
interpretation.
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January Term, 2001

We find that the factors listed in R.C. 2950.09(B)(2) are guidelines that
serve an important function by providing a framework to assist judges in
determining whether a defendant, who committed a sexually oriented offense, is a
sexual predator. These guidelines provide consistency in the reasoning process.
Without such guidelines, judges would be left in uncharted waters and decisions
on whether a defendant was a sexual predator could vary widely depending on a
judge's own viewpoint on the issue.

However, these guidelines do not control a judge's discretion. R.C.
2950.09(B)(2) requires a court to "consider all relevant factors including, but not
limited to, all of the following [factors]." This language requires the court to
"consider" the factors listed in R.C. 2950.09(B)(2), but does not direct the court
on what weight, if any, it must assign to each factor.1 Such an interpretation
makes sense because determining recidivism is at best an imperfect science and
while the guidelines set forth potentially relevant factors, some may not be
applicable in every case. Thus, R.C. 2950.09(B)(2) does not divest a court of its
fact-finding powers in assessing the relevancy of each factor. As we stated in
State v. Eppinger (2001), 91 Ohio St.3d 158, 166, 743 N.E.2d 881, 889, "the trial
court should consider the statutory factors listed in R.C. 2950.09(B)(2), and
should discuss on the record the particular evidence and factors upon which it
relies in making its determination regarding the likelihood of recidivism."
(Emphasis added.)

Accordingly, we find that R.C. 2950.09 requires a judge to consider the
guidelines set out in division (B)(2), but the judge has discretion to determine
what weight, if any, he or she will assign to each guideline. See, generally, State
v. Maser (Apr. 20, 1999), Franklin App. No. 98AP-689, unreported, at * 3, 1999

1.
The word "consider" means "to reflect on: think about with a degree of care or caution."
Webster's Third New International Dictionary (1986) 483.
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SUPREME COURT OF OHIO
WL 236174; State v. Bradley (June 19, 1998), Montgomery App. Nos. 16662 and
16664, unreported, at * 5, 1998 WL 321306.

The guidelines also do not provide an exclusive list of factors to consider
when determining whether an offender is a sexual predator. This is evidenced by
the General Assembly's use of the phrase directing courts to "consider all relevant
factors, including, but not limited to, all of the following [factors]." R.C.
2950.09(B)(2). The phrase "including, but not limited to" "indicates that what
follows is a nonexhaustive list of examples." State v. Lozano (2001), 90 Ohio
St.3d 560, 562, 740 N.E.2d 273, 275, citing Henley v. Youngstown Bd. of Zoning
Appeals (2000), 90 Ohio St.3d 142, 156, 735 N.E.2d 433, 444 (Lundberg Stratton,
J., dissenting). Thus, the "factors" enumerated in R.C. 2950.09(B)(2) are merely
a nonexhaustive list of examples that a court must consider in a sexual predator
hearing. Accordingly, a judge may consider evidence other than those factors
listed in R.C. 2950.09(B)(2) that he or she believes is relevant to determining
recidivism.

Further, R.C. 2950.09(B)(2)(j) is a catchall provision under which a judge
can consider "[a]ny additional behavioral characteristics" of the offender that he
or she believes are relevant to the determination of whether the offender is a
sexual predator.

Accordingly, we find that R.C. 2950.09(B)(2) permits a judge to consider
any other evidence that he or she deems relevant to determining the likelihood of
recidivism, even though not specifically enumerated in R.C. 2950.09(B)(2).
Conclusion

We find that a judge must consider the guidelines set out in R.C.
2950.09(B)(2), but the judge has discretion to determine what weight, if any, he
or she will assign to each guideline. Pursuant to R.C. 2950.09(B)(2), a judge may
also consider any other evidence that he or she deems relevant to determining the
likelihood of recidivism. Therefore, because R.C. 2950.09(B)(2) does not
6

January Term, 2001
encroach upon the trial court in its fact-finding authority, it does not violate the
separation-of-powers doctrine. Accordingly, we reverse the judgment of the
appellate court and reinstate the judgment of the trial court.
Judgment reversed.

MOYER, C.J., DOUGLAS, RESNICK, F.E. SWEENEY and PFEIFER, JJ., concur.

COOK, J., concurs in judgment.
__________________

Mathias H. Heck, Jr., Montgomery County Prosecuting Attorney, and
Kirsten A. Davies, Assistant Prosecuting Attorney, for appellant.

Betty D. Montgomery, Attorney General, and David M. Gormley, State
Solicitor, urging reversal for amicus curiae, Attorney General of Ohio.
__________________
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