[Cite as State v. Clouse, 2015-Ohio-3499.]

COURT OF APPEALS 

LICKING COUNTY, OHIO 

FIFTH APPELLATE DISTRICT 

STATE OF OHIO 

 Plaintiff-Appellee 

-vsMICHAEL W. CLOUSE 

 Defendant-Appellant 

JUDGES: 

Hon. William B. Hoffman, P.J. 

Hon. Sheila G. Farmer, J. 

Hon. John W. Wise, J. 

Case No. 14-CA-99 

O P I N I O N 

CHARACTER OF PROCEEDING: Appeal from the Licking County Court of 

Common Pleas, Case No. 2008 CR 121 

JUDGMENT: Affirmed 

DATE OF JUDGMENT ENTRY: August 25, 2015 

APPEARANCES: 

For Plaintiff-Appellee For Defendant-Appellant 

KENNETH W. OSWALT CHRISTOPHER M. HUDAK 

Licking County Prosecutor Morrow, Gordon & Byrd, Ltd. 

20 S. Second Street, Fourth Floor 33 W. Main Street 

Newark, Ohio 43055 P.O. Box 4190 

 Newark, Ohio 43058-4190 
Licking County, Case No. 14-CA-99 2

Hoffman, P.J. 

{¶1} Defendant-appellant Michael W. Clouse appeals the October 6, 2014 

Judgment Entry entered by the Licking County Court of Common Pleas, classifying him 

a sexual predator pursuant to R.C. 2950.09 (Megan's Law). Plaintiff-appellee is the 

state of Ohio. 

STATEMENT OF THE CASE AND FACTS 

{¶2} On August 15, 2008, Appellant plead guilty to an amended indictment and 

was convicted by the trial court of six counts of gross sexual imposition, felonies of the 

third degree; and one count of gross sexual imposition, a felony of the fourth degree. 

The trial court sentenced Appellant to seven years in the Orient Reception Center and 

imposed a period of five years of post-release control. 

{¶3} The trial court further notified Appellant of his duty to register as a Tier II 

sex offender in accordance with R.C. 2950.03. 

{¶4} On July 29, 2014, Appellant filed a motion for resentencing. The trial court 

granted the motion on September 4, 2014. The trial court found Appellant's 

classification as a Tier II sexual offender void, but otherwise affirmed his convictions 

and sentence. 

{¶5} The trial court scheduled a reclassification hearing for October 3, 2014 in 

order to classify Appellant under the prior version of R.C. 2950.09 (Megan's Law), rather 

than the current version of R.C. 2950.09 (the "Adam Walsh Act"). 

{¶6} Appellant was present at the reclassification hearing via video conference 

from his institution in Chillicothe, Ohio. The trial court proceeded in reclassifying 
Licking County, Case No. 14-CA-99 3

Appellant a sexual predator pursuant to the prior version of R.C. 2950.09 ("Megan's 

Law"). 

{¶7} On October 6, 2014, the trial court filed a Nunc Pro Tunc Judgment Entry 

based on the evidence presented at the resentencing hearing. 

{¶8} Appellant appeals, assigning as error: 

{¶9} "I. THE TRIAL COURT ERRED BY NOT OBTAINING A VALID WAIVER 

FOR HIS NON APPEARANCE AND NOT INFORMING DEFENDANT-APPELLANT OF 

HIS HEARING RIGHTS. 

{¶10} "II. WHETHER THE TRIAL COURT ABUSED ITS DISCRETION BY 

RENDERING DEFENDANT-APPELLANT A SEXUAL PREDATOR. 

{¶11} "III. DEFENDANT-APPELLANT WAS DEPRIVED OF THE EFFECTIVE 

ASSISTANCE OF COUNSEL AT THE RE-SENTENCING HEARING WHEN COUNSEL 

FAILED TO MEET WITH DEFENDANT-APPELLANT TO PREPARE FOR RESENTENCING HEARING AND FAILED TO INVESTIGATE AND PRESENT 

MITIGATING EVIDENCE ON BEHALF OF DEFENDANT-APPELLANT." 

I. 

{¶12} In the first assignment of error, Appellant maintains the trial court erred in 

not obtaining a valid waiver for his not appearance at his resentencing hearing. 

{¶13} Ohio Criminal Rule 43 provides, 

 (A) Defendant's presence 

 (1) Except as provided in Rule 10 of these rules and division (A)(2) 

of this rule, the defendant must be physically present at every stage of the 

criminal proceeding and trial, including the impaneling of the jury, the 
Licking County, Case No. 14-CA-99 4

return of the verdict, and the imposition of sentence, except as otherwise 

provided by these rules. In all prosecutions, the defendant's voluntary 

absence after the trial has been commenced in the defendant's presence 

shall not prevent continuing the trial to and including the verdict. A 

corporation may appear by counsel for all purposes. 

 (2) Notwithstanding the provisions of division (A)(1) of this rule, in 

misdemeanor cases or in felony cases where a waiver has been obtained 

in accordance with division (A)(3) of this rule, the court may permit the 

presence and participation of a defendant by remote contemporaneous 

video for any proceeding if all of the following apply: 

 (a) The court gives appropriate notice to all the parties; 

 (b) The video arrangements allow the defendant to hear and see 

the proceeding; 

 (c) The video arrangements allow the defendant to speak, and to 

be seen and heard by the court and all parties; 

 (d) The court makes provision to allow for private communication 

between the defendant and counsel. The court shall inform the defendant 

on the record how to, at any time, communicate privately with counsel. 

Counsel shall be afforded the opportunity to speak to defendant privately 

and in person. Counsel shall be permitted to appear with defendant at the 

remote location if requested. 

 (e) The proceeding may involve sworn testimony that is subject to 

cross examination, if counsel is present, participates and consents. 
Licking County, Case No. 14-CA-99 5

 (3) The defendant may waive, in writing or on the record, the 

defendant's right to be physically present under these rules with leave of 

court. 

{¶14} During the resentencing hearing, the following discussion occurred on the 

record, 

 THE COURT: Good afternoon - - or, rather, good morning. This is 

Case No. 2008 CR 121, the State of Ohio versus Michael Clouse. The 

record should reflect that we are physically present in the Magistrate's 

courtroom in the Licking County Courthouse with a representative of the 

State of Ohio, Mr. Waltz, from the prosecuting attorney's office; counsel for 

the Defendant, Ms. Crysta Pennington; along with a represent of Adult 

Court Services, Mr. Burke; and a court reporter; and Mr. Clouse is joining 

us by video conference from his institution. 

 Can you hear us okay, Mr. Clouse? 

 DEFENDANT: Yes, sir. 

 THE COURT: And can you see everything all right? 

 DEFENDANT: Yes, sir. 

 THE COURT: Okay. We are here as a result of a motion that was 

filed on behalf of the Defendant for re-sentencing that alleged he was 

improperly classified as a Tier II sexual offender because the offenses for 

which he was convicted occurred before the effective date of the current 

chapter of Revised Code Section 2950, and he was correct, and we're 
Licking County, Case No. 14-CA-99 6

here today to - -for a classification hearing applying the act that the law as 

it existed at the time, and that's why counsel has been appointed. 

 Are you then ready to proceed on that basis, Mr. Waltz? 

 MR. WALTZ: We are, Your Honor. 

 THE COURT: Are you ready to proceed on that basis, Ms. 

Pennington? 

 MS. PENNINGTON: Yes, Your Honor. 

 THE COURT: Go right ahead, Mr. Waltz. 

{¶15} Tr. at 4-5. 

{¶16} Where a defendant fails to object to a video conference appearance, he 

waives all but plain error. State v. Morton, 10th Dist. No. 10AP-562, 2011-Ohio-1488; 

State v. Steimle, 8th Dist. No. 95076, 2011-Ohio-1071; State v. Howard, 2nd Dist. 

101212OHCA2, 2012-Ohio-4747. 

{¶17} Appellant maintains he was unable to meet with trial counsel prior to his 

resentencing hearing, and had he been present at the resentencing hearing, he would 

have had the opportunity to meet with counsel or to advise the court of his inability to be 

advised by counsel. 

{¶18} As noted, Appellant did not object to the proceedings and did not notify the 

court of his unwillingness to proceed. The record does not demonstrate, nor did 

Appellant state on the record, he had not had the opportunity to consult with counsel. 

{¶19} The record does not reflect Appellant was in any way prejudiced by the 

trial court's proceeding with the hearing via video conference. We find the failure to 
Licking County, Case No. 14-CA-99 7

secure a written waiver of his physical appearance at the hearing, did not amount to 

plain error. 

{¶20} Appellant's first assignment of error is overruled. 

II. 

{¶21} In the second assignment of error, Appellant argues the trial court abused 

its discretion in classifying him a sexual predator under Megan's Law. 

{¶22} Under Megan's Law, a sexual predator is defined as a person who has 

been convicted of, or has pleaded guilty to, committing a sexually-oriented offense and 

is likely to engage in the future in one or more sexually-oriented offenses. Former R.C. 

2950.01(E); State v. Eppinger, 91 Ohio St.3d 158 (2001). 

{¶23} In Eppinger, the Supreme Court stated, 

 As previously noted, at the sexual offender classification hearing, in 

order for the offender to be designated a sexual predator, the state must 

prove by clear and convincing evidence that the offender has been 

convicted of a sexually oriented offense and that the offender is likely to 

engage in the future in one or more sexually oriented offenses. R.C. 

2950.01(E) and 2950.09(B)(3). 

 The General Assembly supplied the trial court with several factors 

to consider in making this weighty decision. R.C. 2950.09(B)(2) provides: 

 “In making a determination * * * 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; 
Licking County, Case No. 14-CA-99 8

 “(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.” 
Licking County, Case No. 14-CA-99 9

 As noted by the court of appeals, “[c]lear and convincing evidence 

is that measure or degree of proof which will produce in the mind of the 

trier of facts a firm belief or conviction as to the allegations sought to be 

established. It is intermediate, being more than a mere preponderance, 

but not to the extent of such certainty as is required beyond a reasonable 

doubt as in criminal cases. It does not mean clear and unequivocal.” 

Cross v. Ledford (1954), 161 Ohio St. 469, 477, 53 O.O. 361, 364, 120 

N.E.2d 118, 123. 

{¶24} Here, the trial court based its classification of Appellant as a sexual 

predator under Megan's Law upon the testimony presented at the hearing by Mr. Burke, 

the ages of the victim and Appellant, the multiple occurrences, the possibility of multiple 

victims, Appellant's intoxication during one of the incidents and Appellant's abusing his 

relationship as step-parent of the victim. 

{¶25} Mr. Burke testified his eight years of experience in dealing with sexual 

offenders while working at the Licking County Adult Court Services qualified him to 

opine Appellant would likely commit future sexual offenses based on the facts of the 

case and the accusations of the victims. 

{¶26} A trial court has discretion to determine what weight, if any, it will assign 

any given factor during a sexual predator hearing. State v. Dunsmore, 2015-Ohio-157. 

The trial court is not required to find the evidence presented supports a majority of the 

factors listed. A court may classify an offender as a sexual predator even if only one or 

two statutory factors are present, so long as the totality of the circumstances provides 
Licking County, Case No. 14-CA-99 10

clear and convincing evidence the offender is likely to commit a future sexually oriented 

offense. Id. 

{¶27} Accordingly, based upon the evidence presented at the resentencing 

hearing, we find the trial court did not abuse its discretion in classifying Appellant herein. 

{¶28} The second assignment of error is overruled. 

III. 

{¶29} In the third assignment of error, Appellant argues he was denied the 

effective assistance of counsel. 

{¶30} In order to prevail on an ineffective assistance of counsel claim, appellant 

must meet the two-prong test set forth in Strickland, 466 U.S. 668, 104 S.Ct. 2052, 80 

L.Ed.2d 674. Initially, appellant must show that counsel's performance was deficient. Id.

at 687. To meet that requirement, appellant must show counsel's error was so serious 

that counsel was not functioning as the “counsel” guaranteed by the Sixth Amendment. 

Id. Appellant “may prove counsel's conduct was deficient by identifying acts or 

omissions that were not the result of reasonable professional judgment. The court must 

then determine whether, in light of all the circumstances, the identified acts or omissions 

were outside the wide range of professionally competent assistance.” State v. Sieng

(Dec. 30, 1999), 10th Dist. No. 99AP-282, citing Strickland, 466 U.S. at 690. 

{¶31} If appellant successfully proves that counsel's assistance was ineffective, 

the second prong of the Strickland test requires appellant to prove prejudice in order to 

prevail. Strickland, 466 U.S. at 692. To meet that prong, appellant must show counsel's 

errors were so serious as to deprive him of a fair trial, a trial whose result is reliable. Id.

at 687. To meet this standard appellant must show “that there is a reasonable 
Licking County, Case No. 14-CA-99 11

probability that, but for counsel's unprofessional errors, the result of the proceeding 

would have been different. A reasonable probability is a probability sufficient to 

undermine confidence in the outcome.” Id. at 694. 

{¶32} Here, Appellant has not demonstrated on this record, but for the alleged 

deficiencies of counsel, the outcome of the trial would have been otherwise. The trial 

court considered appropriate statutory factors in determining Appellant was likely to 

engage in one or more sexually oriented offenses in the future. 

{¶33} The third assignment of error is overruled. 

By: Hoffman, P.J. 

Farmer, J. and 

Wise, J. concur