[Cite as State v. Swiderski, 2005-Ohio-6705.]
THE COURT OF APPEALS
ELEVENTH APPELLATE DISTRICT
LAKE COUNTY, OHIO
STATE OF OHIO, : O P I N I O N
Plaintiff-Appellee, :
CASE NO. 2004-L-112
– vs – :
FRANK Z. SWIDERSKI, :
Defendant-Appellant. :
Criminal Appeal from the Court of Common Pleas, Case No. 03 CR 000255.
Judgment: Affirmed.
Charles E. Coulson, Lake County Prosecutor, and Amy E. Cheatham, Assistant Prosecutor, 105 Main Street, P.O. Box 490, Painesville, OH 44077 (For Plaintiff-Appellee).
Daniel S. Chaplin, 1148 Euclid Avenue, #300, Cleveland, OH 44115 (For Defendant-Appellant).
COLLEEN MARY O’TOOLE, J.
{¶1} Appellant, Frank Z. Swiderski, appeals from the judgments of the Lake County Court of Common Pleas, sentencing him to an aggregate prison term of thirty months and adjudicating him as a sexual predator. For the following reasons, we affirm.
{¶2} On July 1, 2003, the Lake County Grand Jury indicted appellant on eight counts of gross sexual imposition, each count a fourth degree felony in violation of R.C. 2907.05(A)(1); three counts of pandering sexually oriented matter involving a minor, each count a fourth degree felony in violation of R.C. 2907.322(A)(5); and four counts of pandering obscenity involving a minor, each count a fourth degree felony in violation of R.C. 2907.321(A)(5). At his arraignment, appellant pleaded not guilty to the foregoing charges.
{¶3} On January 12, 2004, appellant entered a written guilty plea to one count of gross sexual imposition and two counts of pandering sexually oriented material involving a minor. The written guilty plea did not include a recommended sentence.
{¶4} During a change of plea hearing, the court advised appellant of his constitutional and non-constitutional rights incident to trial. Appellant acknowledged that he understood these rights and that his guilty plea would act to waive these rights. The court then accepted appellant’s guilty plea and convicted him on one count of gross sexual imposition and two counts of pandering sexually oriented matter.
{¶5} This matter proceeded to a sentencing hearing and sexual offender classification hearing, which were held contemporaneously. During the hearing, the court considered the testimony and report of Dr. John Fabian (“Dr. Fabian”), and the report of Dr. Michael Arnoff (“Dr. Arnoff”), regarding two separate psychological evaluations of appellant. Also, the court considered the submitted pre-sentence investigation report.
{¶6} The evidence established that appellant’s convictions were based upon his improper sexual contact with a foreign exchange student and his possession of pornographic pictures depicting minor males engaging in various sexual activities. The victim of the improper sexual contact was a seventeen-year-old, male foreign exchange student. Appellant was acting as the victim’s host parent when the improper sexual contact occurred.
{¶7} At the conclusion of the hearing, the court discussed the relevant sentencing and recidivism factors and pronounced its sentence. The court sentenced appellant to a fifteen-month prison term on each of the two counts of pandering sexually oriented material, with the prison terms to run concurrently. The court also sentenced appellant to a fifteen-month prison term on the single count of gross sexual imposition. The fifteen-month prison term for gross sexual imposition was to be served consecutive to the concurrent fifteen-month prison term for pandering sexually oriented material.
{¶8} On June 24, 2004, the court issued a judgment entry which re-stated its findings and sentence. The judgment entry also included the court’s determinations with respect to appellant’s sexual offender classification. Based upon its findings, the court adjudicated appellant as a sexual predator.
{¶9} From this judgment, appellant filed a timely notice of appeal and now sets forth the following five assignments of error:
{¶10} “[1.] The trial court’s sentence violated Blakely v. Washington *** and the case must be remanded for a new sentencing hearing.
{¶11} “[2.] The trial court’s consecutive sentence violated the Ohio Supreme Court’s requirement that consecutive sentences are reserved for the worst offenses and worst offenders pursuant to State v. Comer ***.
{¶12} “[3.] The court’s conclusion that the appellant is not amenable to an available community control sanction is not supported by the record.
{¶13} “[4.] The trial court failed to ensure that the 30 month sentence imposed on the appellant was consistent with similar sentences imposed on similar offenders in violation of R.C. 2929.11(B).
{¶14} “[5.] The evidence is insufficient to sustain a finding that the appellant is a sexual predator.”
{¶15} Under his first assignment of error, appellant contends that, per Blakely v. Washington (2004), 124 S.Ct. 2531, the trial court erred by sentencing him to a nonminimum prison term and consecutive prison terms. We disagree.
{¶16} In Blakely, the defendant pleaded guilty to kidnapping involving the use of a firearm, a class B felony. In the state of Washington, the statutory maximum for a class B felony was ten years; however, other provisions of Washington law limited the range of sentences a judge could impose. Consequently, the “standard” statutory range for the offense to which the defendant pleaded guilty was forty-nine to fifty-three months. Although the guidelines set forth the “standard” sentence, a court could enlarge the “standard” sentence if it found any of a non-exhaustive list of aggravating factors justifying the departure. In Blakely, the trial court determined the defendant acted with “deliberate cruelty” and imposed a sentence of ninety-months, a thirty-seven month upward departure from the “standard.”
{¶17} The United States Supreme Court reversed the sentence, holding a trial court may not extend a defendant’s sentence beyond the statutory maximum when the facts supporting the enhanced sentence are neither admitted by the defendant nor found by the jury. Id. The court defined the statutory maximum as “the maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant.” (Emphasis sic.) Id. at 2537.
{¶18} Appellant maintains that the court’s imposition of non-minimum prison terms and consecutive prison-terms exceeded the statutory maximum. Therefore, appellant concludes that, in exceeding the statutory maximum, the court made statutory findings not made by a jury or admitted by appellant, thereby violating Blakely and depriving him of due process.
{¶19} With respect to the non-minimum prison terms, appellant was convicted on three separate fourth degree felonies. The statutory minimum prison-term for a fourth degree felony is six months, while the statutory maximum prison-term is eighteen months. The trial court sentenced appellant to prison terms of fifteen months on each fourth degree felony.
{¶20} R.C. 2929.14(B) states:
{¶21} “(B) *** if the court imposing a sentence upon an offender for a felony elects or is required to impose a prison term on the offender, the court shall impose the shortest prison term authorized for the offense pursuant to division (A) of this section, unless one or more of the following applies:
{¶22} “(1) The offender was serving a prison term at the time of the offense, or the offender previously served a prison term.
{¶23} “(2) The court finds on the record that the shortest prison term will demean the seriousness of the offender’s conduct or will not adequately protect the public from future crime by the offender or others.”
{¶24} To support its upward departure from the minimum prison-terms, the court relied upon a finding that the shortest prison terms would demean the seriousness of appellant’s conduct and not adequately protect the public from future crime.
{¶25} This court has previously not applied the holding of Blakely to the sentencing factors of R.C. 2929.14(B). In doing so, we have concluded that the Blakely holding does not render the trial court’s findings with respect to these factors constitutionally infirm. See, e.g., State v. Fielder, 11th Dist. No. 2003-L-190, 2005-Ohio-3388; State v. Semala, 11th Dist. No. 2003-L-128, 2005-Ohio-2653; State v. Morales, 11th Dist. No. 2003-L-025, 2004-Ohio-7239. We have provided the following explanation:
{¶26} “In State v. Morales, 11th Dist. No. 2003-L-025, 2004-Ohio-7239, we began our analysis by noting that Blakely and the prior case law of the United States Supreme Court had not had the effect of depriving a trial judge of the discretion to consider aggravating circumstances in deciding the length of a defendant’s sentence; instead, the Blakely decision only held that a trial judge cannot make a factual finding which would result in the imposition of a sentence longer than the maximum prison term permissible under the jury verdict. In other words, we concluded that, under Blakely, the Sixth Amendment right to a jury trial had no application so long as the trial judge was imposing a sentence within the general range of terms permissible based upon the jury verdict. The Morales court then held that the factors set forth in R.C. 2929.14(B) were similar in nature to aggravating circumstances because a trial court’s finding concerning the existence of one of the two factors in a particular case only meant that a longer term within the acceptable range could be imposed. As a result, the Morales court ultimately held that the procedure under R.C. 2929.14(B) did not constitute a violation of the basic constitutional right to a jury trial.” Fielder at ¶44.
{¶27} The clear precedent of this court establishes that the trial court’s use of the sentencing factors under R.C. 2929.14(B) did not constitutionally invalidate its imposition of non-minimum prison terms. Instead, the trial court obtained proper statutory authority to impose prison terms which were longer than the statutory minimum when it made the appropriate findings under R.C. 2929.14(B). This portion of appellant’s first assignment of error is not well-taken.
{¶28} Likewise, the court’s imposition of consecutive prison-terms was not constitutionally invalid per Blakely. When imposing consecutive sentences, the trial court must first determine that consecutive sentences are “necessary to protect the public from future crime or to punish the offender and that consecutive sentences are not disproportionate to the seriousness of the offender’s conduct and to the danger the offender poses to the public[.]” R.C. 2929.14(E)(4). Next, the trial court must find that one of the following factors listed in R.C. 2929.14(E)(4) is also present: (a) that the offender was awaiting trial or sentencing or was under community control sanctions; (b) that the harm caused by the offenses was so great that a single prison term would not adequately reflect the severity of the conduct; or (c) that the offender’s prior criminal history demonstrates that consecutive sentences are necessary to protect the public from future crime. State v. Norwood (June 8, 2001), 11th Dist. No. 2000-L-072, 2001 Ohio App. LEXIS 2573.
{¶29} In the case sub judice, the court found that consecutive prison-terms were necessary to protect the public from future crime or to punish appellant and are not disproportionate to the seriousness of his conduct and the danger he poses to the public. The court further found that the harm caused by appellant’s multiple offenses was so great or unusual that no single prison term adequately reflects the seriousness of his conduct.
{¶30} Despite the court’s findings with respect to the statutory sentencing factors, this court has consistently held that a sentencing court’s imposition of consecutive sentences does not violate the rule set forth in Blakely. See, e.g., State v. Taylor, 158 Ohio App.3d 597, 2004-Ohio-5939, at ¶26. See, also, State v. Allen, 11th Dist. No. 2004-L-038, 2005-Ohio-1415, at ¶29; Semala at ¶37. In doing so, we noted that Blakely is distinguishable from the instant case where consecutive sentences have been issued for multiple crimes. Specifically, we noted that Blakely dealt with sentencing for a single crime. See, e.g., Semala at ¶36. Therefore, Blakely does not apply to consecutive sentences “as long as the sentence does not exceed the statutory maximum for each individual underlying offense.” Id.
{¶31} The court sentenced appellant to prison terms of fifteen months on each of the individual underlying fourth degree felonies. As noted previously, the statutory maximum prison-term for a fourth degree felony is eighteen months. Thus, the trial court’s imposition of fifteen-month prison terms did not exceed the statutory maximum. This portion of appellant’s first assignment of error is also not well-taken.
{¶32} Appellant’s first assignment of error is without merit.
{¶33} Appellant’s second, third, and fourth assignments of error challenge the validity of the court’s felony sentence. In examining these assignments of error, we note that, under R.C. 2953.08, our review of a felony sentence is de novo. State v. Bradford (June 1, 2001), 11th Dist. No. 2000-L-103, 2001 Ohio App. LEXIS 2487, at 3. However, this court will not disturb a given sentence unless we find, by clear and convincing evidence, that the record does not support the sentence or that the sentence is otherwise contrary to law. State v. Thomas (July 16, 1999), 11th Dist. No. 98-L-074, 1999 Ohio App. LEXIS 3334. Clear and convincing evidence is that evidence which will produce in the mind of the trier of fact a firm belief or conviction as to the facts sought to be established. Id.
{¶34} Under his second assignment of error, appellant maintains that the court’s consecutive prison-terms were not justified as he did not commit the worst offense nor was he the worst offender. Instead, appellant contends that an examination of certain statutory factors under R.C. 2929.12(E) establishes a low likelihood of recidivism. Thus, appellant concludes that the court erred in issuing consecutive prison-terms.
{¶35} In arguing that the court was required to specifically find that appellant was the worst offender or committed the worst offense, appellant relies upon the following statement by the Ohio Supreme Court:
{¶36} “Consecutive sentences are reserved for the worst offenses and offenders.” State v. Comer, 99 Ohio St.3d 463, 2003-Ohio-4165, at ¶21.
{¶37} Such reliance is misplaced. The Court’s general statement did not mandate a specific finding by the trial court that a defendant committed the worst offense or was the worst offender. Instead, taken in full context, the statement merely established that the trial court’s application of R.C. 2929.14(E)(4) will ensure that consecutive sentences are reserved for the worst offenses and offenders. Id. at ¶13-21. A review of the statutory factors under R.C. 2929.14(E)(4) demonstrates that the court was not required to find that appellant was the worst offender or that he committed the worst offense prior to imposing consecutive prison-terms.
{¶38} The only instance in which R.C. 2929.14 requires the trial court to find that the defendant committed the worst form of the offense is under R.C. 2929.14(C). R.C. 2929.14(C) requires the trial court to find that the defendant committed the worst form of the offense before imposing the maximum prison-term. However, as stated previously, the statute does not require this finding when imposing a consecutive prison-term per R.C. 2929.14(E)(4).
{¶39} Nevertheless, the court was obligated to follow the requirements set forth in R.C. 2929.19(B) when sentencing appellant to consecutive prison-terms. Specifically, R.C. 2929.19(B)(2)(c) requires that the trial court justify its imposition of consecutive prison-terms by making findings that give the court’s reasons for selecting that particular sentence.
{¶40} In the past, this court has held that the findings mandated by R.C. 2929.19(B)(2)(c) and 2929.14 “must appear somewhere on the record of sentence, either in the judgment or in the transcript of the sentencing hearing.” State v. Rone (Dec. 4, 1998), 11th Dist. No. 98-A-0001, 1998 Ohio App. LEXIS 5813, at 6. In Comer, however, the Ohio Supreme Court held that when ordering a defendant to serve consecutive sentences, the trial court must also make its statutorily required findings at the sentencing hearing. Id. at paragraphs one and two of the syllabus.
{¶41} In the case sub judice, the court sentenced appellant to two consecutive fifteen-month prison terms. As stated under appellant’s first assignment of error, the court set forth its findings pursuant to R.C. 2929.14(E)(4), at the sentencing hearing, and as part of its sentencing entry.
{¶42} With respect to the aforementioned findings, the court provided the following reasons in support: (1) the victim was a foreign exchange student and appellant used his position of authority as a host parent to facilitate the offenses; (2) appellant used manipulation and acts of intimidation to assist in committing these offenses; and (3) appellant has admitted to a long history of sexual criminal conduct.
{¶43} The foregoing demonstrates the court’s compliance with Comer and the statutory prerequisites for issuing consecutive sentences. The court’s findings and reasons for issuing consecutive sentences are substantiated by the record and were made part of the sentencing entry and sentencing hearing. Thus, this portion of appellant’s second assignment of error is not well-taken.
{¶44} Moreover, the trial court was required to consider the recidivism factors of R.C. 2929.12(E). The trial court stated that it had considered the recidivism factors of R.C. 2929.12(E) and balanced its consideration of such factors against its findings and the principles and purposes of sentencing. In doing so, the court ultimately determined that certain factors demonstrating a low likelihood of recidivism were outweighed by those factors justifying a consecutive prison-term.
{¶45} The trial court was in the best position to evaluate and balance the relevant statutory factors when determining appellant’s sentence. As a result, we will not substitute our judgment for that of the trial court’s when there is clear and convincing evidence supporting its findings and when the sentence is not otherwise contrary to law. See, e.g., Thomas; Bradford. Here, the court, within its wide sentencing discretion, determined that despite its consideration of recidivism factors, a consecutive prisonterm was necessary. Because the record supports the court’s findings and because the sentence was not contrary to law, the court did not err in issuing a consecutive prisonterm. This portion of appellant’s second assignment of error is also not well-taken.
{¶46} Appellant’s second assignment of error is without merit.
{¶47} Under his third assignment of error, appellant maintains that the court erred in concluding that appellant was not amenable to an available community control sanction. Specifically, appellant argues that the court failed to consider the availability of specific community control sanctions and whether appellant was willing to submit to community control.
{¶48} When imposing a sentence for a felony of the fourth or fifth degree, the trial court must determine if one of the factors enumerated in R.C. 2929.13(B)(1) is present. This statute provides that:
{¶49} “In sentencing an offender for a felony of the fourth or fifth degree, the sentencing court shall determine whether any of the following apply:
{¶50} “***
{¶51} “(d) The offender held a public office or position of trust and the offense related to that office or position[.]”
{¶52} If the trial court finds that (1) one of the foregoing factors is present; (2) that a prison term is consistent with the purposes of sentencing; and (3) that the defendant is not amenable to community control sanctions, a prison term must be imposed. R.C. 2929.13(B)(2)(a). In making these determinations, the court must consider all relevant factors, including the factors affecting the seriousness of the offenses and the potential for recidivism found in R.C. 2929.12(B) through (E). R.C. 2929.12(A).
{¶53} In the case sub judice, the court found that a prison sentence was consistent with the purposes of sentencing and that appellant was “not amenable to an available community control sanction.” And the trial court found that appellant had facilitated the offense by abusing his position of trust as a host parent of the victim. The court also noted that it had considered all relevant factors including the recidivism factors of R.C. 2929.12(B).
{¶54} The trial court clearly considered all relevant statutory factors prior to determining that appellant was not amenable to community control and adequately stated its findings. Thus, the court did not err in sentencing appellant to a prison term rather than community control. Appellant’s third assignment of error is without merit.
{¶55} Under his fourth assignment of error, appellant contends that the trial court failed to ensure that its thirty-month prison term was consistent with sentences for similar offenses. Appellant maintains that the trial court ignored evidence presented at the hearing of similar cases in which the trial court’s sentence did not include a prison term. Therefore, appellant concludes that the court failed to adhere to the sentencing consistency requirement of R.C. 2929.11(B).
{¶56} We agree with appellant that R.C. 2929.11(B) mandates consistency when applying Ohio’s sentencing guidelines. See, e.g., State v. Lyons, 8th Dist. No. 80220, 2002-Ohio-3424, at ¶30. Accordingly, “it is the trial court’s responsibility to insure that it has the appropriate information before it when imposing sentence in order to comply with the purposes of felony sentencing.” Id. However, this court has reasoned that sentencing consistency is not developed via a trial court’s comparison of the existing matter before the court to prior sentences for similar offenders and similar offenses. State v. Spellman, 160 Ohio App.3d 718, 2005-Ohio-2065, at ¶12. Specifically, we stated:
{¶57} “We agree with the rationale of the Lyons court, insofar as the trial court must adhere to the statutory mandate to ensure consistency in sentencing. However, we note, as that court did, that the trial court is required to make its sentencing decisions in compliance with the statute, but need not specifically comb the case law in search of similar offenders who have committed similar offenses in order to ascertain the proper sentence to be imposed.” Id.
{¶58} In short, a consistent sentence is not derived from a case-by-case comparison; rather, it is the trial court’s proper application of the statutory sentencing guidelines that ensures consistency. As discussed previously, the court properly applied and considered the necessary statutory sentencing factors before issuing appellant’s sentence. Moreover, the court’s findings were supported by clear and convincing evidence. Thus, the court’s sentence met the consistency requirement as espoused by R.C. 2929.11(B). Appellant’s fourth assignment of error is without merit.
{¶59} Under his fifth assignment of error, appellant contends that the trial court erred in adjudicating him as a sexual predator. In support of this contention, appellant maintains that several factors, including his age and the absence of a prior criminal record, establish a low likelihood of recidivism. Thus, appellant argues that the court’s sexual predator adjudication was not based upon clear and convincing evidence.
{¶60} R.C. 2950.01(E)(1) 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.” In applying the sexual predator definition, a common pleas court can classify an individual as a sexual predator only if it concludes that the state has established both prongs of the definition by clear and convincing evidence. R.C. 2950.09(B)(4). Clear and convincing evidence is the measure or degree of proof which “will produce in the mind of the trier of facts a firm belief or conviction as to the facts sought to be established.” Cross v. Ledford (1954), 161 Ohio St. 469, paragraph three of the syllabus. See, also, State v. Eppinger, 91 Ohio St.3d 158, 164, 2001-Ohio-247.
{¶61} To assist a common pleas court in determining the second prong of the sexual predator definition, specifically, whether appellant is likely to engage in the future in one or more sexually oriented offenses, R.C. 2950.09(B)(3)(a)-(j) sets forth a list of nonexclusive factors that the court must consider. These factors include: (1) the offender’s age; (2) the offender’s prior criminal record; (3) the victim’s age; (4) whether the underlying sexually oriented offense involved multiple victims; (5) whether the offender used alcohol or drugs to impair or incapacitate the victim; (6) whether the offender has previously participated in a rehabilitative program for sexual offenders; (7) any mental illness or mental disability of the offender; (8) the specific nature of the sexual conduct involved in the underlying sexually oriented offense; (9) whether the offender acted cruelly in committing the underlying sexually oriented offense; and (10) any additional behavioral characteristics that contribute to the offender’s conduct.
{¶62} Here, the record demonstrates that the common pleas court considered the factors of R.C. 2950.09(B)(3), and after doing so, concluded there was clear and convincing evidence to support a determination that appellant satisfied both prongs of the sexual predator definition. In particular, the court noted that appellant had pleaded guilty to a sexually oriented offense as defined by R.C. Chapter 2950. The trial court then proceeded to the second prong of its sexual predator classification and provided the following analysis of the requisite factors under R.C. 2950.09(B)(3):
{¶63} “a.) The defendant was sixty-eight (68) years of age at the time of the offense;
{¶64} “b.) The defendant has no prior criminal record;
{¶65} “c.) The victim of the sexually oriented offense for which sentence was imposed was between seventeen (17) and eighteen (18) years of age at the time of the crime;
{¶66} “d.) The sexually oriented offense for which the sentence was imposed involved multiple victims:
{¶67} “1) On Count 1 – the offense involved one (1) victim;
{¶68} “2) On Counts 9 and 10, the Court finds multiple victims depicted in the images of child pornography;
{¶69} “e.) The defendant did not use drugs or alcohol to impair the victim or to prevent the victim from resisting;
{¶70} “f.) The defendant has no prior offenses and, therefore has no prior treatment;
{¶71} “g.) The defendant does have a mental illness or mental disability, to-wit: per Dr. Fabian’s report, the defendant has traits of obsessive/compulsive disorder, traits of pedophilia and traits of ephebophilia;
{¶72} “h.) The nature of the offender’s sexual conduct, sexual contact, or interaction in a sexual context included touching/massaging of the buttocks and thighs. The defendant’s sexual actions were part of a demonstrated pattern of abuse which occurred from August 2002 through April 2003, including possession for several decades of images of child pornography;
{¶73} “i) The nature of the defendant’s actions during the commission of the sexually oriented offense displayed cruelty or threats of cruelty, to-wit: the victim reported verbal threats from the defendant. The defendant yelled at the victim and threatened to send the victim back to Vietnam;
{¶74} “j.) Additional behavioral characteristics that contributed to the defendant’s conduct include the following:
{¶75} “1) The defendant has a long-time history of inappropriate sexual behavior, including sexual activity with young boys.
{¶76} “2) The defendant has a long-time history of taking and viewing images of child pornography, nude photography of [high school] students and nephews.
{¶77} “3) The defendant has a history and has admitted engaging in sexual activity including sexual conduct with his nephews;
{¶78} “4) The defendant is in denial. Based upon investigation, the defendant ‘does not get it’ – behavior with students/young boys/men, is not tolerated by society;
{¶79} “5) The defendant has a history of engaging in lewd and lascivious sexual behavior with male [high school] students in the 1970’s;
{¶80} “6) During the 1970’s, the defendant admits to having high school students at his home and engaging in sexual activity;
{¶81} “7) The defendant’s single, male status, per psychological reports elevates his risk[.]”
{¶82} Despite the trial court’s extensive and detailed findings, appellant claims that clear and convincing evidence did not support a sexual predator adjudication. For instance, appellant claims that the record established that neither Dr. Arnoff nor Dr. Fabian found appellant to be a pedophile. Also, appellant contends that there was no evidence that appellant was diagnosed with an impulse control disorder by Dr. Arnoff and that Dr. Arnoff could not predict with any certainty whether appellant would reoffend.
{¶83} To the contrary, our thorough review of the record demonstrates that the court’s findings were supported by clear and convincing evidence. Namely, the findings are substantiated by Dr. Fabian’s testimony and psychological report, Dr. Arnoff’s psychological report, the pre-sentence investigation report; the victim’s statement, and appellant’s own admissions. As noted by the trial court, Dr. Fabian testified that appellant demonstrated traits of an obsessive compulsive disorder. The record also established that Dr. Fabian found appellant had traits of pedophilia. Further, Dr. Arnoff’s report recognized that appellant’s test results placed him in a medium-high risk of recidivism.
{¶84} While the record accurately reflects the absence of some factors which would support a sexual predator adjudication, the overwhelming majority of factors found by the common pleas court demonstrated that appellant was likely to commit a sexually oriented offense in the future. Many of these relevant factors were based upon appellant’s self-reporting. Thus, the court’s findings are supported by clear and convincing evidence and both prongs of the sexual predator definition have been satisfied. Appellant’s fifth assignment of error is without merit.
{¶85} Based upon the foregoing analysis, appellant’s five assignments of error are without merit. We hereby affirm appellant’s sentence and sexual predator adjudication.
DONALD R. FORD, P.J.,
CYNTHIA WESTCOTT RICE, J.,
concur.
A Potomac man was sentenced to three years of probation in District Court on Friday for recording an exchange student while she was taking a shower.
Photo by Gale Curcio/Local Kicks
Foreign student exchange 
What The State Department & Exchange Student Industry Don’t Want You To Know….. By,JackSwint & Sam Webber
PART ONE ofourtwo part story takes you first inside of a multi million dollar industry known on the surface as the National Foreign Exchange Student Program. The original concept and intent is easy; it’s a program that became popular after WWII in which a student, typically in secondary or higher education, chooses to live in a foreign country to learn, among other things, the language and culture. Americasponsorsapproximately 30,000 a year.Below the surface, a dark side has evolved that has allowed pedophiles, rapists and common thieves to infiltrate this program and use it as a black market sex slave network that preys on children that we invited into our country. What’s most alarming is that you can actually go online and order upthe student of your choice. View their picture, read their bio and then pick that childto be delivered to your doorstep. (link below) It’s like the old Burger King commercial where you can have it “your way.” Some predators whohave been arrested and convicted of sex crimes against exchange students admit they pre-picked their teen because they wanted to have sex with that specific one.Example: Convicted predators like Frank Swiderski (OH), Peter Ruzzo (CA), and Richard Young (KS), have, in one form or another admitted the desire to have sex with their exchange student simply upon seeing their photo. Ruzzo even considered it a challenge. He accomplished it too. In West Virginia, the exchange program has also fallen prey to students being groomed for sex and violence by a criminal element that has cloaked itself in the form of sponsors, supervisors and host parents. In our state alone, a pedophile network exists that includes pedophiles in at least Kanawha, Cabell, McDowell and Fayette Counties.
Do officials at the board of education know of this problem within the exchange program?? Yes, sources tell us numerous complaints are on file and sealed within the WV State Board of Education that date back years. At least one former teacher-principal had to resign because of his pedophile-rapist acts that the board concealed to head off a scandal. Thomas Scott Kingwas moved around from county to county school systems until they had to finally force his resignation. He still is a host parent and sponsor today. But, over the years he has become involved in a network of pedophiles operating not only in WV, but across the country and abroad.
To most of us we think of the Foreign Exchange Student Program as a chance for teens to come to America and attend our schools and live with host families in the country most foreigners consider the land of freedom and great opportunities. At least that is what the pamphlets, brochures and websites from the business thatoperate these programs detail. What they don’t admit or advertise is that, just in the US alone, this is a multi million dollar industry that generates from $9,000 to $22,000 per student per year. They also hide the fact that some really bad people are intentionally destroying a really good program that was once held beyond reproach.It’s not just about sex. Some host families and sponsors have been convicted of crimes from petty theft to extortion. Several documented cases show that students were placed in the homes of parolee’s with criminal convictions for aggravated assault/robbery and accusations of rape. A retired parole officer in Eugene, Oregon confirmed during a 3-year period supervising sex offenders of five instances of them gaining access to new child victims by becoming hosts to foreign students.The retired officer, stated in a report….. “I learned of 5 instances of sex offenders, in this county, gaining access to new child victims by becoming hosts of foreign students. One was convicted of molesting a 16 year-old Japanese girl. Another convicted sex offender hosted a 17 year-old Japanese boy, but the boy returned home before he could be questioned to determine if he was abused. Another convicted rapist hosted a 18 year-old Japanese girl; she stayed in his home only a few days before the situation became known to authorities and girl was removed, but not before the rapist began touching her inappropriately (grooming behavior, a prelude to raping her.) A year later, this same rapist was accepted by a host organization to host a 16 year-old Thai girl.”
Some students arrive in the US with no hosts; no schools and they are placed in trailer parks and motels or live (contrary to regulations) with coordinators. They are paraded around shopping centers looking for potential hosts. So, what government entity oversees the entire program?? The U.S. State Department, who in turn rely on the same organizations that are making millions of dollars each year. When faced with a serious complaint, the government agencies stance has routinely been that it is a “contractual dispute” with the student’s family and youth exchange organization.
Who tries to oversee all of this?? Watchdog associations and concerned citizens like Danielle Grijalva, founder of the organization, “Committee of Safety for Foreign Exchange Students.” Danielle says the problem is just too big. And, it appears on the surface that one reason no one really wants to address it because so much money is being made in this growing industry. Her efforts have paid off; their organization is now comprised of over 1,500 CSFES volunteers from across the globe. Even their press releases are now translated and appear in over 35 newspapers internationally.
Before becoming an advocate for the abused, Danielle was first an area representative for the Center for Cultural Interchange, a foreign exchange student program based in St. Charles, Ill. She helped find host families for students studying in the U.S., securing high school placement for them as well as advising them on local culture and customs. She is now the watchdog of those people who prey on those innocent students we have invited to our country like the spider to the fly.
Then on Sept. 20, 2004, she learned about what she calls “the dark side” of the foreign exchange program. A 16-year-old exchange student from France sat in her living room and told her that within a month of his arrival his host father photographed him when he was sleeping, showed him online pornography and offered him alcohol. Grijalva instincts as a mother took over and she looked for help from everyone she could think of: local police, employers, school administrators. The more she researched, the more she learned that abuse at the hands of host families or individuals, across the world, was a silent problem.
More than 30,000 students arrive in the U.S. each year through foreign-exchange programs. Grijalva believes abuse can go unreported due to language barriers, cultural differences and student fears that visas may be taken away. Some students have been told if they make a complaint, they will be deported in less then 72 hours. And, they will be sent home in shame.
“I began to ask questions,” she said. “. . . These were invisible victims.”
In 2006, Danielle began obtaining complaints. Right away she documented 54 cases of sexual abuse and even extortion. The state department had only reported 5 cases of sexual abuse for that time period. After her inquiries for copies of those complaints, the state department reluctantly added 20 additional cases of alleged abuse. The state department claims they have invoked stronger policies in placing students with host families and or sponsors such as a criminal background check.
But, as statistics show, most pedophiles and predators have never been convicted of a crime. Some are the pillars of the community concealing their deep dark secrets. Sources we spoke to say some background checks had only consisted of providing 3 references. Complaints from students being raped,sodomized, beaten and robbed are rampant across the United States and have begun escalating over the past 6 years. Stories have echoed back from parents of the children after returning to their homeland questioning if this type of behavior is common in our society.If a student or parent’s complaint makes it up the ladder to overseeing agencies likeAYUSA International, a standard response comes in the form of a “warning letter” to deter any further problems. Reading between the lines, one may decipher this letter as a “shut up”, or youwill be dealt withaccordingly. Up to and including deportation.”We obtained one such warning letter that states to a student complaining of abuse…. “Consequently, the purpose of this letter is to inform you that you are officially on warning with AYUSA and to clarify with you what we expect of you as an AYUSA student. Failure to make an effort to change your behavior/attitude will result in being placed on probation with the AYUSA program.” That letter goes on to say, “…. you were selected for this program because we believe that you have the maturity and capability to deal with the demands of a year in the United States.
AYUSA expects that you will take this warning letter very seriously and will make strides toward changing your attitude and behavior and completing a successful year in the U.S. Weanticipate that you will act, for theremainder of your stay, in a manner befitting anAYUSA student and a junior ambassador of Montenegro. In the end, the studentwas sent home early after posting complaints online of the abuse. To add insult to injury, when a studentis returned home early, these companies refuse to refund the parents money.State & Federal lawsuits against companies s like ASSE, AISE & AYUSA have exposed the reported ongoing problems of abuse and how these companies fail to follow federal statutes that are in place to protect such acts from occurring. But, these types of legal actions can take years to make it into the judicial system. By then, the damageis done, and the student hasreturned back to their country and is trying to deal with the trauma and disgrace we subjected them to. Reports confirm some teens become suicidal; self mutilate themselves, withdrawal from society and even horde food which demonstrates possible starvation tacticshad been used on them to submit to their abuser.More and more arrests and convictions are occurring. In 90% of the cases, the victim knew their assailants. Sadly enough, statistics show that the majority of offenders are the teachers & other school officials who these kids placed all of their trust in!!!
Exchange Students In WV
In November of 2008 we published an expose on former WV teacher & principal Thomas Scott King. His brother, Casey, came forward with overwhelming and shocking information how his older brother had raped and molested him from the age of 7 years old. Last year, Casey went to the WV state police with his complaint. Casey King’s motivation?? To finally face those demons of what his now 60 year old brother had done to him. And, more so, to stop this man who reportedly continues to prey on young teens for his deviant sexual gratification today.
Unfortunately, the WV trooper investigating that complaint retired. To date, no one has resumed the investigation. We have been advised that the new WV Police Commander, Colonel Pack, has spoken to State Police Captain Schoolcraft on or about Tuesday February 10, 2009, and that Schoolcraft and Pack have discussed the filed complaint on Thomas Scott King.
Scott King was considered a hero among students. According to one source, who at the time attended Welch Jr. High, “He was the cool teacher who always bought us booze and took us to WVU ballgames and many school trips.” He went on to say that all of these boys were 13 to 15 at the time and that “we didn’t know what a pedophile was.”
Since that November story, we have continued to investigate and gather information on the fact that, even though Scott King had to resign his teaching credentials years ago for alleged sex abuse, he has remained a member in great standing with the national and local levels of the Foreign Exchange Student Program. He is not just a host dad and sponsor any longer, King is now also a part of a state wide network of pedophiles, some who are prominent and well respected in the community. He has climbed the ladder in this multi-million dollar profit industry and joined the ranks of hosts and sponsors that are better known as a “high placer.”
DanielleGrijalva explained to us the open door possibilities and perks of being a “high placer.” Especially, if the host and sponsor has criminal intent. “There are many volunteers, local coordinators, regional coordinators, directors, etc., within the student exchange community. All are usually responsible for locating and securing host families and high schools for an exchange student.For those volunteers, coordinators, directors, etc., who go ‘above and beyond’ by placing thirty, forty or fifty (plus) exchange students, theyare nicknamed and referred to in this community as a “high placer.” When you consider that the natural parents of these prospective exchange students will spend approx. $8,000 to $22,000 to study abroad as aJ1 participant, a “high placer” becomes very lucrative to the agency they work/volunteer for. Many student exchange agencies are very protective of their “high placers” and stand behindmost every move they make.”According to official records, King has hosted as a parent, supervised or sponsored children from the following countries. Germany, Argentina, Brazil, Czech Republic, Holland, Hungry, Netherlands, Russia, Spain, Sweden, Turkey & Yugoslavia.
Next Friday at 2pm…. Hear from Scott King s victims, and learn the names of prominent & respected people in WV who want to come forward because they know of the inner workings of a multi-county pedophile network. Learn what Scott Kings former students & school faculty members really thought of him.
Read how one former student allegedly recalls waking up naked in a bedroom located in Scott Kings home and having to flee into the night and seek refuge at a neighbors home. Another student from Welch, reportedly was provided alcohol by King and awoke in a motel to find himself naked while King was standing over him taking pictures…
End Of Part One…..
….
Anyone who has questions or information concerning abuse within the Foreign Exchange Student Program is asked to e-mail or call : … Danielle Grijalva … dgrijalva@csfes.org … (760) 295-0716
….
Original story on Thomas Scott King
….
Example of websites that allow you to match & pick your choice of child: Aspect Foundation /
….
Foreign Exchange Organizations With The Highest Complaints & Lawsuits
….
http://www.aspectfoundation.org/
….
http://www.asse.com/
….
http://www.ayusa.org/
….
8 comments:
(uit: http://www.isgp.eu)