State v. James L. Dillbeck
| Decision Date | 14 December 1999 |
| Docket Number | 99AP-399,99-LW-5500 |
| Parties | State of Ohio, Plaintiff-Appellee v. James L. Dillbeck, Defendant-Appellant. |
| Court | Ohio Court of Appeals |
APPEAL from the Franklin County Court of Common Pleas.
Ron O'Brien, Prosecuting Attorney, and Susan E. Day, for appellee
Randall L. Stephan, for appellant.
James L. Dillbeck, defendant-appellant, appeals the judgment of the Franklin County Court of Common Pleas, finding that he is a sexual predator. We affirm.
On July 27, 1988, appellant pled guilty to committing rape, a violation of R.C. 2907.02. Appellant was sentenced to serve seven to twenty-five years in prison. Prior to being released from prison, the trial court held a sexual predator hearing on March 4, 1999. The court found "by clear and convincing evidence, that [appellant] should be and is hereby adjudicated a 'sexual predator' subject to the requirements of Chapter 2950 of the Ohio Revised Code." Appellant appeals this decision and presents the following assignments of error:
Appellant argues in his first assignment of error that the state failed to present sufficient evidence to support the trial court's finding that he is a sexual predator. Appellant also argues that the trial court's decision is against the manifest weight of the evidence.
A sexual predator is defined 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." R.C. 2950.01(E). After reviewing all testimony and evidence presented at a hearing conducted pursuant to R.C. 2950.09(B)(1), a judge shall determine by clear and convincing evidence whether the offender is a sexual predator. R.C. 2950.09(B)(3). In making the determination of whether the offender is a sexual predator, the judge shall consider all relevant factors including, but not limited to, all of the following:
R.C. 2950.09(B)(2)(a through j). An appellate court in reviewing a finding that the appellant is a sexual predator must examine the record to determine whether the trier of fact had sufficient evidence before it to satisfy the clear and convincing standard. State v. Worthy (Nov. 12, 1999), Franklin App. No. 99AP-260, unreported (1999 Opinions 4959, 4961).
*** Clear and convincing evidence is that measure or degree of proof which is more than a mere preponderance of the evidence, but not to the extent of such certainty as is required beyond a reasonable doubt in criminal cases, and which will provide in the mind of the trier of facts a firm belief or conviction as to the facts sought to be established. ***
State v. Smith (June 22, 1999), Franklin App. No. 98AP-1156, unreported (1999 Opinions 1694, 1697-1698), following Cincinnati Bar Assn. v. Massengale (1991), 58 Ohio St. 3d 121, 122.
In the present case, the state presented evidence that appellant had pled guilty to a sexually oriented offense. Appellant had previously pled guilty to rape, which is defined as a "sexually oriented offense" pursuant to R.C. 2950.01(D)(1). The state also presented evidence concerning appellant's likelihood to engage in the future in one or more sexually oriented offenses by introducing: (1) a copy of appellant's indictment; (2) a copy of appellant's guilty plea form; (3) a copy of appellant's sentencing entry; and (4) a copy of appellant's parole board hearing file.
The parole board hearing file contains information concerning appellant's actions which resulted in his rape conviction. The victim was a fifty-one year old woman who was a roommate of appellant's girlfriend. On July 31, 1986, appellant visited the victim's apartment and asked whether his girlfriend was home. After being informed that she was not home, appellant "pushed his way into the apartment," removed his clothes, and then began kissing and fondling the victim. The victim told appellant on several occasions to leave her alone. The victim stated that she tried to yell but appellant put his hand over her mouth.
Appellant removed the victim's clothes and forced her to perform fellatio and submit to vaginal intercourse. The victim also stated that appellant then took her to a bedroom, pushed her onto the bed and performed cunnilingus on her. Appellant also "ransacked the dresser drawers" and took two wedding rings off of her fingers. The victim further stated that appellant told her that if "she called police he was going to kill her, and if he got put in jail, he would have his brother kill her." The victim sustained bruises and a cigarette burn from appellant.
The psychological report stated that appellant said "he used intimidation and manipulation to make her have sex with him, and indicated that he did the crime because he was 'trying to prove I was a man.'" The psychological report also states that appellant did not request sex offender programming while he was in prison. It further states that appellant has "significant gender identity issues." Appellant stated that he had been cross-dressing since he was twelve years old and that he feels "like I am a woman, [but] I don't have a woman's body" and that he actually feels like he is a woman trapped in the wrong body. Appellant claimed that the rape occurred in part "because he had also been so angry, because of the conflict inside of him." The psychological report concluded that appellant had a gender identity disorder and adult antisocial behavior.
The parole board hearing file also included a list of appellant's convictions prior to his rape conviction. In 1971, appellant was sentenced to serve one to ten years in prison for possession of a narcotic drug and for armed robbery. In 1973, appellant was sentenced to serve one to five years in prison for assault, battery, possession of a sawed off shotgun, and carrying a weapon without a permit. In 1976, appellant was sentenced to consecutively serve two ten year terms for two counts of armed robbery. Appellant was also found guilty of possession of marijuana in 1984, resisting arrest in 1985, attempted theft of a motor vehicle in 1986, and disorderly conduct in 1986. In exchange for his plea of guilty for rape, the state dismissed charges of kidnapping, gross sexual imposition, robbery, intimidation, and two counts of rape.
A review of the trial court's decision shows that the trial court extensively commented on each of the factors listed in R.C. 2950.09(B)(2)(a through j). The court concluded that appellant's "history of criminal activity coupled with the diagnosis of antisocial personality disorder means that the risk of recidivism by [appellant] is both real and probable."
After having reviewed the record, we find that sufficient evidence was presented to support the trial court's determination that appellant was a sexual predator. Appellant's past criminal conduct, the details of the rape, and his admission that the rape was...
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