State v. Andrew J. Morrison
| Decision Date | 20 September 2001 |
| Docket Number | 01AP-66,01-LW-3624 |
| Parties | State of Ohio, Plaintiff-Appellee v. Andrew J. Morrison, Defendant-Appellant |
| Court | Ohio Court of Appeals |
APPEAL from the Franklin County Court of Common Pleas.
Ron O'Brien, Prosecuting Attorney, and Sarah W. Thompson, for appellee.
Yeura R. Venters, Public Defender, and Allen V. Adair, for appellant.
Defendant-appellant, Andrew J. Morrison, appeals from a judgment of the Franklin County Court of Common Pleas determining that he should be classified as a sexual predator pursuant to R.C. Chapter 2950, Ohio's sex offender registration and notification statute.
Appellant was convicted in 1990 on two counts of kidnapping and three counts of rape, each count including a firearm specification. The charges against appellant arose out of two separate incidents involving different victims. All charges against appellant were consolidated and heard in a single trial.
The first victim, Melissa Stewart, age sixteen at the time of the crime, testified that at approximately 2 a.m., on February 23, 1990, she was attempting to hitchhike to her mother's home from the vicinity of the Goody Boy restaurant on North High Street in Columbus, Ohio. Stewart was not on good terms with her mother at the time and had been staying at her boyfriend's home, but on the evening in question she had decided to return to her mother's house. Stewart accepted a ride from appellant who agreed to drive her where she needed to go. Instead of driving Stewart northward to her mother's house, however, appellant commenced driving south. When Stewart protested, appellant told her that he needed to purchase gasoline for his truck. Stewart was initially not suspicious, but when appellant entered the freeway he pulled a gun on her and told her if she tried to jump out of the vehicle he would kill her. While driving south on I-71 out of Columbus, appellant forced Stewart at gunpoint to undress.
After driving for some distance on the interstate and country roads south of Columbus in an area not familiar to Stewart, they arrived at a house in a rural area. Appellant told Stewart to lie down in the grass while he tied her up with rope. Appellant then untied her and took Stewart into a bedroom of the house where he forced her to perform fellatio, and then vaginally and anally raped her. Although the only lights illuminating the bedroom were a television set that was on and indirect light from a bathroom light that was on down the hall, Stewart observed characteristic tattoos on appellant's chest and forearm, which she subsequently included in her description of appellant to police.
Appellant eventually walked Stewart back out to the truck and permitted her to get dressed. Appellant then drove Stewart to a gas station and released her. At the gas station, Stewart immediately requested the attendant call police. When the police arrived she gave them a description of her assailant and the events she had just experienced. Stewart did not, however, at that time give police her actual name because she had juvenile charges pending against her and was afraid of being sent to juvenile detention.
After appellant's arrest, Stewart subsequently identified appellant as her assailant from a photo array presented to her by Columbus police. Stewart also identified appellant in open court.
The second victim, Emily Jones, testified at trial that she was walking near her home when appellant stopped his truck to ask her for directions, then forced her into the vehicle, threatening her with a handgun. As they drove, appellant stated his intent to have sex with her against her will and ordered her to undress as they drove south on I-71 out of town. Fearing for her life, Jones jumped from the truck as it slowed to exit the freeway. A medical report found in the record indicates that Jones, who was approximately twenty-four weeks pregnant at the time, suffered serious abrasions and lacerations when she jumped from the truck, and possibly would have to undergo skin grafts.
Appellant testified, with respect to Emily Jones, that he met her on Main Street and that she agreed to accompany him to his home in Grove City, south of Columbus, to engage in sex for money. Appellant testified that as they drove to his home Jones changed her mind, and appellant agreed to take her back to Columbus. As appellant slowed to take an exit that would allow him to turn around, Jones suddenly jumped from the truck. Appellant then got out and asked her if she was alright but when Jones merely told him to go away, appellant got back into his truck and drove off.
With respect to Stewart's testimony, appellant denied any role in her abduction and rape. Appellant believed his only prior contact with Stewart had been when she solicited him for prostitution in the parking lot of a fast food restaurant on North High Street, near the Goody Boy restaurant, on an occasion when appellant had been in the vicinity looking for work at Ohio State University. Appellant acknowledged picking up prostitutes on two prior occasions in the North High Street area of Columbus. Appellant denied showing a handgun or having one in his possession during the episode with Emily Jones.
Testimony by police officers established that appellant was arrested a few days after Jones' abduction, based upon information provided to police by a North High Street area prostitute that a man in a red pick-up truck had been abducting and raping prostitutes using a gun and showing a badge. At the time of his arrest, appellant had in his truck a pair of handcuffs, a ski mask, a "butterfly" knife, and a police-style master-at-arms badge issued to appellant during his service in the Navy.
The jury returned a verdict of guilty on one count of kidnapping with respect to Emily Jones and three counts of rape and one count of kidnapping with respect to Melissa Stewart. The trial court imposed concurrent five to twenty-five year terms on these last four charges, with an additional three years on a firearms specification, all to be served consecutively to a five to twenty-five year sentence, plus an additional three years for a firearm specification, imposed for the kidnapping of Emily Jones. Appellant's conviction and sentence were affirmed upon appeal to this court. State v. Morrison (Nov. 19, 1991), Franklin App. No. 91AP-91, unreported.
Appellant remained incarcerated when R.C. Chapter 2950 became effective in 1997. Pursuant to R.C. 2950.09(C), the Ohio Department of Rehabilitation and Correction recommended that appellant be adjudicated a sexual predator, and appellant was returned for a hearing before the trial court.
At the hearing, the state's evidence consisted of the indictments from the underlying offenses, appellant's prison file, a copy of the post-sentence investigation report, and excerpted trial transcripts containing the testimony of appellant and Melissa Stewart.
Counsel for appellant offered evidence consisting of a certificate demonstrating appellant's completion of the Polaris Program for sex offenders while incarcerated, certificates demonstrating completion of other courses while at the institution, appellant's high school diploma, and a college transcript demonstrating appellant's participation and completion of college%level courses offered by Hocking Technical College while incarcerated. Appellant's counsel also introduced military documents reflecting appellant's meritorious military service, including his honorable discharge and letters of commendation reflecting appellant's duties as a highly skilled welder during his Navy service from 1985 to 1989. Finally, defense counsel introduced an extensive psychological assessment and report prepared by Kristin Haskins, Ph.D., reflecting her opinion of appellant's general psychological characteristics and the low likelihood that appellant would reoffend. Dr. Haskins also testified personally at the hearing.
Despite Dr. Haskins' strongly favorable testimony, the court nonetheless concluded after the hearing that appellant should be adjudicated a sexual predator. The court based its decision on the recurrent nature of appellant's conduct, the paraphernalia found in appellant's truck at the time of his arrest which indicated that he was prepared to commit further crimes, and the court's perception that appellant continued to be less than truthful regarding his commission of the crimes.
Appellant has timely appealed and brings the following assignment of error:
The evidence before the court was legally insufficient to establish that appellant was a sexual predator, subject to the lifetime registration and community notification provisions of Chapter 2950 of the Ohio Revised Code. Furthermore, such a finding was against the manifest weight of the evidence.
Appellant's assignment of error thus asserts that the judgment classifying him as a sexual predator was not supported by sufficient evidence to meet the legal standard of proof or, in the alternative, was against the manifest weight of the evidence. As a threshold issue in this case, we note that our appellate standard of review when addressing manifest weight and sufficiency of the evidence claims in an appeal from a sexual predator determination is a matter of some debate which has not been uniformly resolved in Ohio's appellate districts. This court has, with some decree of equivocation, characterized predator hearings as essentially civil in nature. State v. Newton (June_11, 1998), Franklin App. No. 97AP-1353, unreported; State v. Harden (Oct. 29, 1998), Franklin App. No. 98AP-223, unreported. This characterization of the proceedings as civil is largely based on State v. Cook (1998), 83 Ohio St.3d 404. While Cook did not explicitly...
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