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Date: 06-02-2017

Case Style:

STATE OF OHIO vs. MICHAEL KAHN

Sex Offender

Court of Appeals Of Ohio, Eighth Appellate District

Case Number: 104360

Judge: E.T. Gallagher

Court: Court of Appeals of Ohio, EIGHTH APPELLATE DISTRICT, COUNTY OF CUYAHOGA

Plaintiff's Attorney:

Daniel T. Van
Assistant Prosecuting Attorney
Cuyahoga County Prosecutor

Defendant's Attorney:

Thomas A. Rein

Description: Kahn has a history of sex crimes convictions. In 1977, he was convicted of
attempted gross sexual imposition (“GSI”) after he sexually molested a four-year-old girl.
In 1980, he was convicted of GSI after sexually molesting a ten-year-old girl. In 1989,
Kahn was convicted of felonious assault. It is not clear whether his victim was male or
female. Nevertheless, in 1991, he pleaded guilty to rape of an adult woman and was
sentenced to 25 years in prison. In 2001, while Kahn was incarcerated, the court ordered
a sexual predator classification hearing to determine if Kahn was a sexual predator. At
defendant’s request, the hearing was continued until after his release in 2016.
{¶4} Dr. Michael Aronoff, of the court psychiatric clinic, evaluated Kahn for the
sexual predator hearing in 2016. In his report, Dr. Aronoff reported that Kahn was
“actively psychotic” during the clinical interview and appeared “distracted by auditory
hallucinations.” Therefore, Dr. Aronoff concluded that the information Kahn provided
during the interview was “of questionable validity.”
{¶5} Nevertheless, Dr. Aronoff based his opinion on numerous sources outside of
the interview. He referred to a record that indicated Kahn was sexually molested as a
child. Other records showed that Kahn was born eight weeks prematurely in 1956 and
that his mother took medications during pregnancy to prevent miscarriage. He was only
two pounds 13 ounces at the time of his birth.
{¶6} At age 17, Kahn began living in a group home operated by the Parent
Volunteer Association. His father indicated in a report that Kahn engaged in sexual
misconduct and aggressive behavior in the home. During much of his life, Kahn either
lived in a group home or in prison. He also received considerable psychological testing,
numerous diagnoses, and treatment. In 1982, he was diagnosed with “conduct disorder,
undersocialized, non-aggressive, and mild mental retardation.” Dr. Aronoff had
previously diagnosed Kahn as having pedophilia in 2001, and a psychologist at Mount
Sinai Hospital diagnosed him with pedophilia in 1980. Kahn had also been diagnosed
with various depressive disorders, personality disorders, developmental disorders, and
schizoaffective disorder among other diagnoses.
{¶7} Based on “subjective and objective measures of sexual interest,” Dr. Aronoff
concluded that Kahn “has a significant sexual interest in young girls aged 8 to 10 years”
and that he “appears to have a sexual interest in females aged 2 to 4 years, adolescent
males and females, and adult females.”
{¶8} At the sexual predator hearing, defense counsel raised concerns about Kahn’s
competency. The state argued that because sexual predator classifications are civil in
nature, the court was not required to hold a hearing to determine Kahn’s competency.
The trial court agreed and proceeded without a competency hearing. At the conclusion
of the hearing, the court found, by clear and convincing evidence, that Kahn was a sexual
predator.
{¶9} Kahn now appeals the trial court’s judgment.
II. Law and Analysis
A. Competency
{¶10} In the first assignment of error, Kahn argues the trial court erred by
proceeding with the sexual predator hearing after his trial counsel raised concerns
regarding his competency.
{¶11} A criminal defendant may not stand trial if he is deemed legally
incompetent. State v. Berry, 72 Ohio St.3d 354, 359, 650 N.E.2d 433 (1995). R.C.
2945.37(B), which governs a criminal defendant’s competency to stand trial, provides
that a common pleas court must hold a competency hearing “[i]n a criminal action” if the
prosecutor or defense counsel raises the issue of competency.
{¶12} However, sexual predator hearings are civil in nature, not criminal. State v.
Jones, 93 Ohio St.3d 391, 754 N.E.2d 1252 (2001) (Lundberg Stratton, J., concurring in
part, dissenting in part); State v. Kendrick, 10th Dist. Franklin No. 98AP-1305, 1999 Ohio
App. LEXIS 4622 (Sept. 30, 1999). Because sexual predator hearings are civil
proceedings, R.C. 2945.37, which applies only to “criminal actions,” is inapplicable.
{¶13} Kahn nevertheless argues that his right to due process required the court to
hold a competency hearing and cites State v. Chambers, 151 Ohio App.3d 243,
2002-Ohio-7345, 783 N.E.2d 965 (11th Dist.), to support his argument. In Chambers,
the Eleventh District concluded that a convicted sex offender has the right to a
competency hearing before being classified as a sexual predator under former R.C.
Chapter 2950. In reaching this conclusion, the Chambers court analogized sexual
predator hearings to probation and parole violation hearings and noted that the United
States Supreme Court held that a defendant’s due process rights at such hearings include
the right to confront and cross-examine adverse witnesses. Id. at ¶ 10, citing Morrissey
v. Brewer, 408 U.S. 471, 489, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972), and Gagnon v.
Scarpelli, 411 U.S. 778, 782, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973).
{¶14} The Chambers court reasoned that a defendant’s ability to be heard and
confront adverse witnesses “may be rendered null if the defendant is not competent to
understand and to participate in or to assist counsel in participating in the proceedings.”
Id. at ¶ 10, quoting State v. Qualls, 50 Ohio App.3d 56, 58, 552 N.E.2d 957 (10th
Dist.1988) (holding that the defendant was, as a matter of due process, entitled to a
competency hearing before his probation revocation hearing.).
{¶15} We find the Chambers court’s reliance on cases discussing the scope of a
defendant’s due process rights in probation and parole violation cases is misplaced in the
context of sexual predator hearings. As the United States Supreme Court explained in
Morrissey:
Whether any procedural protections are due depends on the extent to which an individual will be “condemned to suffer grievous loss.” Joint Anti-Fascist Refugee Commt. v. McGrath, 341 U.S. 123, 168 [71 S.Ct. 624, 95 L.Ed. 817] (1951) (Frankfurter, J., concurring), quoted in Goldberg v. Kelly, 397 U.S. 254, [90 S.Ct. 1011, 95 L.Ed.2d 287] (1970). The question is not merely the “weight” of the individual’s interest, but whether the nature of the interest is one within the contemplation of the “liberty or property” language of the Fourteenth Amendment. Fuentes v. Shevin, 407 U.S. 67 [92 S.Ct. 1983, 32 L.Ed.2d 287] (1972).

Once it is determined that due process applies, the question remains what process is due. It has been said so often by this [c]ourt and others as not to require citation of authority that due process is flexible and calls for such procedural protections as the particular situation demands. “Consideration of what procedures due process may require under any given set of circumstances must begin with a determination of the precise nature of the government function involved as well as of the private interest that has been affected by governmental action.” Cafeteria & Restaurant Workers Union v. McElroy, 367 U.S. 886, 895 [81 S.Ct. 1743, 6 L.Ed.2d 1230] (1961).

To say that the concept of due process is flexible does not mean that judges are at large to apply it to any and all relationships. Its flexibility is in its scope once it has been determined that some process is due; it is a recognition that not all situations calling for procedural safeguards call for the same kind of procedure.

{¶16} In holding that a parolee’s due process rights include the right to confront
adverse witnesses, the Morrissey court balanced the state’s interest in protecting the
public from future crime against the parolee’s constitutional right to liberty as guaranteed
by the Fourteenth Amendment. Obviously, revocation of parole or probation results in
the defendant’s loss of liberty. Such is not the case in sexual predator proceedings, and
Ohio Supreme Court precedent suggests the convicted sex offender’s right to due process
is more limited than that of a parole or probation violator. See State v. Ferguson, 120
Ohio St.3d 7, 2008-Ohio-4824, 896 N.E.2d 110.
{¶17} In Ferguson, the court held, in part, that retroactive application of the sexual
classification statute did not violate the defendant’s constitutional protection against the
enactment of ex post facto laws because the sexual classification statute was remedial
rather than punitive. Id. at ¶ 29. In balancing the effect a sexual predator classification
would have on the convicted sex offender against the state’s interest in protecting the
public, the Ferguson court noted that former R.C. Chapter 2950 was “replete with
references to the legislature’s intent to ‘protect the safety and general welfare of the
people of this state’ and to ‘assur[e] public protection.’” Id., quoting former R.C.
2950.02(B). Moreover, the court explained:
As we have before, we acknowledge that R.C. Chapter 2950 may pose significant and often harsh consequences for offenders, including harassment and ostracism from the community. [State v.] Wilson, 113 Ohio St.3d 382, 2007-Ohio-2202, 865 N.E.2d 1264, ¶ 46 (Lanzinger, J., dissenting); [State v.] Cook, 83 Ohio St.3d 404, 413, 700 N.E.2d 570 [1998]. We disagree, however, with Ferguson’s conclusion that the General Assembly has transmogrified the remedial statute into a punitive one by the provisions enacted through S.B. 5.

* * *

As an initial matter, we observe that an offender’s classification as a sexual predator is a collateral consequence of the offender’s criminal acts rather than a form of punishment per se.

* * *

We conclude that the General Assembly’s purpose for requiring the dissemination of an offender’s information is the belief that education and notification will help inform the public so that it can protect itself.
“Widespread public access is necessary for the efficacy of the scheme, and the attendant humiliation is but a collateral consequence of a valid regulation.” Smith [v. Doe], 538 U.S. 84, 99, 123 S.Ct. 1140, 155 L.Ed.2d 164 [2003].

Ferguson at ¶ 32-38. Thus, the Ferguson court found that the state’s need to protect the
public from convicted sex offenders whose recidivism rates are known to be “alarming”
outweighed the “significant and often harsh consequences for offenders” such that sex
offenders at classification hearings are entitled to less due process protection than
defendants facing criminal penalties. Id. at ¶ 32, 35, and 38. Because sexual predator
hearings are civil and remedial in nature, and R.C. 2945.37 only mandates a
competency hearing in “criminal actions,” the trial court was not required to hold a
competency hearing before proceeding with Kahn’s sexual predator hearing.
{¶18} In Chambers, the trial court determined the offender was incompetent and
classified him as a sexually oriented offender, by default, even though the trial court had
determined he was a sexual predator. Rather than restoring Chambers to competency to
ensure that he understood the proceedings and the reporting requirements of his
classification, the court classified him as a sexually oriented offender because “there is no
evidence that an individual convicted of a sexually oriented offense could present at a
hearing that would cause a trial court to determine that he is not a sexually oriented
offender.” Chambers at ¶ 14, citing State v. Hayden, 96 Ohio St.3d 211,
2002-Ohio-4169, 773 N.E.2d 502, ¶ 15.
{¶19} A sexual classification by default does not solve the problem of the
offender’s incompetence. Admittedly, there is little the offender can do to defend
against the statute’s automatic classification of sexually oriented offenders. However, a
classification by default fails to achieve the legislature’s intent to protect the public from
future crime if the incompetent offender fails to register a change of address because he
did not understand his reporting requirements. And if the offender is a sexual predator,
then more frequent reporting is necessary to protect the public than is required for
sexually oriented offenders. Unfortunately, former R.C. Chapter 2950 does not address
the rare, but real, circumstances of this case. Nevertheless, because former R.C. Chapter
2950 is civil and remedial in nature, the court was not required to hold a competency
hearing before proceeding with the sexual predator hearing in this case.
{¶20} We are cognizant that Civ.R. 17(B) provides that “when a minor or
incompetent person is not otherwise represented in an action, the court shall appoint a
guardian ad litem or shall make such other order as it deems proper for the protection of
such * * * incompetent person.” However, the trial court’s obligation to appoint a
guardian ad litem only arises when the incompetent person is not otherwise represented.
Kendrick, 10th Dist. Franklin No. 98AP-1305, 1999 Ohio App. LEXIS 4622 (Sept. 30,
1999); Mihal v. Sargis, 8th Dist. Cuyahoga No. 49532, 1985 Ohio App. LEXIS 8792
(Oct. 3, 1985).
{¶21} Kahn was represented by competent counsel at the sexual predator hearing.
Effective assistance of counsel is sufficient to protect the offender’s interests at a sexual
predator hearing. Therefore, Kahn’s right to due process was not violated by the court’s
failure to hold a competency hearing before the sexual predator proceedings.
{¶22} Accordingly, the first assignment of error is overruled.


B. Sexual Predator Classification
{¶23} In the second assignment of error, Kahn argues the trial court erred when it
classified him as a sexual predator.
{¶24} In 1996, the General Assembly enacted Ohio’s version of the federal
“Megan’s Law” legislation, which created a comprehensive registration and classification
system for sex offenders. State v. Bodyke, 126 Ohio St.3d 266, 2010-Ohio-2424, 933
N.E.2d 753, ¶ 6-7. Under Megan’s Law, a sentencing court was required to determine
whether a sex offender fell into one of three classifications (1) sexually oriented offender,
(2) habitual sex offender, or (3) sexual predator. Cook, 83 Ohio St.3d 404, 407, 700
N.E.2d 570 (1998).
{¶25} In 2007, the Ohio General Assembly enacted the Adam Walsh Act, which
imposed a three-tiered sexual offender classification system. Bodyke at ¶ 20. Thus,
sexual predator hearings were no longer necessary under the Adam Walsh Act, since
classifications were automatically determined based on the offense committed. Id.
However, the Ohio Supreme Court held that the Adam Walsh Act could not be applied
retroactively to offenders who committed their offenses prior to the act’s effective date,
January 1, 2008. Therefore, because Kahn committed the rape offense that triggered the
sexual predator hearing prior to January 1, 2008, Megan’s Law is the applicable
classification system. Id.
{¶26} Under Megan’s Law, former R.C. 2950.01(E) defines 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.”
The state has the burden of proving, by clear and convincing evidence, that the offender
was a sexual predator. State v. Hendricks, 8th Dist. Cuyahoga No. 102365,
2015-Ohio-3035, ¶ 13.
{¶27} In determining whether an offender is a sexual predator under Megan’s
Law, former R.C. 2950.09(B)(3) instructs the court to consider (1) the age of the offender
and criminal record, (2) the victim’s age, (3) whether the offense involved multiple
victims, (4) whether the offender used drugs or alcohol to impair the victim, (5) if the
offender has previously been convicted of any criminal offense, (6) whether the offender
participated in any available program for sex offenders, (7) whether the offender
demonstrated a pattern of abuse or displayed cruelty toward the victim, (8) any mental
illness or disability of the offender, and (9) any other behavioral characteristics that
contribute to the sex offender’s conduct. See former R.C. 2950.09(B)(3)(a)-(j).
{¶28} Although the court must consider the factors set forth in former
R.C. 2950.09(B), it is not required to make an individual assessment of those factors, nor
is any one factor or combination of factors dispositive. State v. Caraballo, 8th Dist.
Cuyahoga No. 89757, 2008-Ohio-2046, ¶ 8.
{¶29} And since sexual predator classifications under Megan’s Law are considered
civil in nature, the civil manifest weight of the evidence standard of review applies on
appeal. State v. Nelson, 8th Dist. Cuyahoga No. 101228, 2014-Ohio-5285, ¶ 8. Under
the manifest weight of the evidence standard, this court must give “great deference” to the
trial court’s findings of fact. Wilson, 113 Ohio St.3d 382, 2007-Ohio-2202, 865 N.E.2d
1264, ¶ 26. Judgments supported by competent, credible evidence must be affirmed.
{¶30} Kahn argues there was no evidence demonstrating that he was likely to
engage in future sexual misconduct because all the evidence presented was stale.
Therefore, he argues, the sexual predator classification was against the manifest weight of
the evidence.
{¶31} The trial court relied on evidence presented by Dr. Aronoff and determined
that the following factors weighed in favor of adjudicating Kahn a sexual predator (1)
Kahn’s criminal history, (2) the victim’s ages, (3) the fact that there were multiple
victims, and (4) the nature of the conduct. The court recounted other incidents in which
Kahn chased female victims, but his actions in those instances did not result in criminal
prosecution. Most of his victims were children, many under 14 years of age.
{¶32} The court also noted that Kahn admitted he was caught attempting to sneak
under a bathroom stall to view a handicapped child using the toilet when he was a
sanitation worker. Although Kahn was fired as a result of this incident, there were no
formal legal charges.
{¶33} The trial court also considered Kahn’s score on the STATIC-99 test, which
indicated that he had a moderate to high-risk of reoffending, despite his age. Kahn’s
responses to the ABEL Assessment indicated that he began engaging in inappropriate
sexual conduct when he was 13 years of age and that the conduct continued until he was
sentenced to 25 years in prison for rape when he was 32 years of age. Although the
ABEL Assessment was completed in 2001, Dr. Aronoff was able to complete a revised
STATIC-99, which indicated a “moderate high-risk * * * of reoffending.” Although the
ABEL Assessment may have been stale if considered by itself, when considered with the
updated STATIC-99 score, the two tests indicate a likelihood that Kahn will reoffend.
{¶34} Finally, the court considered the fact that Kahn had not completed any
sexual offender programs, suffers from mental illness and disability, and admitted being
aggressive toward children. The court also referenced the fact that Kahn was sexual and
aggressive towards children in the group home where he lived as an adolescent.
{¶35} Dr. Aronoff’s opinions and Kahn’s test scores, considered with the facts of
each of Kahn’s cases and his history of mental illness and sexual aggression, support the
court’s determination that Kahn should be classified as a sexual predator.
{¶36}

Outcome:

Therefore, the second assignment of error is overruled.

Judgment affirmed.

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