The Akron Legal News

Man gets prison time after termination from sex offender program

ANNIE YAMSON
Special to the Legal News
Published: November 14, 2013

Despite his completion of a sex offender treatment program, the 6th District Court of Appeals recently affirmed the termination of a defendant’s community control and subsequent prison sentence in the Wood County Court of Common Pleas.

The defendant, Justin Clark, pleaded guilty to third-degree importuning in December 2009.

In 2010, the Wood County court sentenced Clark to three years of community control including 15 special conditions, with a reserved prison term of five years.

One of the conditions specified that Clark “shall contact an agency approved by the Adult Probation Program for an assessment for sexual offender treatment and successfully complete any an all recommendations for services, at offender’s cost.”

Clark chose a program named Behavioral Connections and, on Sept. 13, 2012, he was unsuccessfully terminated from its sexual offender treatment program.

Following a hearing on the state’s petition to revoke Clark’s community control, the trial court approved the petition and imposed a four-year prison term.

At the hearing, the state alleged that Clark was unsuccessful in completing his treatment, therefore violating his community control.

It presented five witnesses, one of whom was Brian Laux, Clark’s probation officer.

Laux testified that Clark was married but living alone because, under the terms of his probation, he was not allowed to have contact with his wife’s daughter.

He also said Clark had previously violated the terms of his community control by allowing a registered sex offender, convicted of gross sexual imposition with a male child, to live with him for about one week.

Laux further expressed concern over a Craigslist posting that Clark had made under the section “men seeking men.”

Clancy Yeager, the forensic program manager at Behavioral Connections, also testified during the hearing.

He stated that Clark had been receiving services from Behavioral Connections for five years.

Yeager said that Clark would occasionally be receptive to treatment that aimed to improve his management of risk around deviant sexual arousal, establish a stable lifestyle and work on identifying and changing criminal attitudes and emotion management techniques.

However, Yeager also stated that Clark would sometimes “change and reject” the treatment, though he confirmed that Clark’s attendance was regular and “very good.”

The state then called Jeffrey Bischoff, a mental health therapist who worked with Clark, to testify.

Bischoff said he was involved with Clark’s treatment throughout his time at Behavioral Connections.

He claimed Clark would regularly make progress for a short time and then regress.

He experienced the most success in finding employment and maintaining a job, but Bischoff testified that he did not notice any improvements in Clark’s thinking about re-offending or criminal behaviors.

Bischoff also told the court that Clark was ultimately discharged from the program because he “was showing a lack of progress and we had tried everything we knew to try at that point, and he started to have a negative effect on the group.”

According to the testimony, there was concern that overtreatment would exacerbate Clark’s psychological issues.

Another mental health counselor testified that Clark had a high risk for re-offense and that he did not have a proper support system in place because his wife did not appear to understand the seriousness of Clark’s original offense.

Both counselors stated that Clark had an excellent attendance record and that he tried to work with them “the best that he could.”

Clark took the stand in his defense. He indicated that he had attended all of his sessions at Behavioral Connections and completed all of the assignments given to him.

Since leaving the treatment program, he said he had sought out individual counseling from another doctor and regularly attended those sessions.

Clark told the court that he used strategies he learned during treatment to avoid re-offending as much as possible and went to two different churches that provided him support.

He said “more than anything, I want to put his past behind me and move forward and have a family.”

Clark’s wife told the court that she was not concerned for the safety of her children around Clark.

After hearing the testimony, the trial court stated, “This is a difficult issue that I need to think through a little further. Again, he is required to successfully complete his sexual offender treatment, however his failure to do so is through no fault of his own as best as I can tell, so I need to sort through whether or not that does indeed constitute a violation” of his community control.

Ultimately, the court found that Clark did, in fact, violate his probation “despite his best efforts,” and he was sentenced to prison.

Upon appeal, Clark essentially argued that it was the system that had failed him, and not the other way around.

“In support of his first assignment of error, appellant argues that the trial court abused its discretion when it found that he violated the terms of his community control because the evidence against him consisted of vague statements that he ‘was showing a lack of progress’ and ‘treatment doesn’t seem to be helping him,’” wrote Judge Stephen Yarbrough for the court of appeals.

The three-judge appellate panel found that Clark’s was not a case in which he failed to participate.

Instead, he was unsuccessfully discharged because, in spite of his efforts, “he was unable to satisfactorily remedy the issues that necessitated sexual offender treatment in the first place.”

“Although the record does not indicate that appellant willfully violated the terms of his community control, he was provided with the correct type of treatment to resolve his issue,” wrote Judge Yarbrough. “It was up to appellant to use the treatment to make the necessary changes in his life.”

The appellate panel determined that, regrettably, Clark was unable to make those changes.

Citing a previous 6th District case, Judge Yarbrough held that the “defendant cannot complain that society did not try to work with him, nor that it did not give him a chance. It did. Unfortunately for the defendant, the state and its citizens have run out of viable alternatives.”

Judge Yarbrough concluded by finding that the Wood County court did not abuse its discretion in finding that Clark had violated the terms of his community control, nor did it err by sentencing him to prison.

Presiding Judge Arlene Singer and Judge James Jenson concurred.

The case is cited State v. Clark, 2013-Ohio-4831.

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