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HomeMy WebLinkAboutCP-21-CR-0960-2006 COMMONWEALTH IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA v. JOHN YINGST CP-2l-CR-960-2006 CP-2l-CR-606-2006 IN RE: SEXUALLY VIOLENT PREDATOR DETERMINATION BEFORE OLER, J. OPINION and ORDER OF COURT OLER, 1., February 26,2007. On, August 15, 2006, Defendant entered a number of pleas of guilty and no contest to various criminal offenses. At No. 960 Criminal Term Defendant entered (a) pleas of guilty to fifteen counts of involuntary deviate sexual intercourse, each graded a felony of the first degree, five counts of statutory sexual assault, each graded a felony of the second degree, five counts of aggravated indecent assault, each graded a felony of the second degree, ten counts of indecent assault, each graded a misdemeanor of the first degree, one count of corruption of minors, a misdemeanor of the first degree, and one count of selling or furnishing liquor or malt or brewed beverages to minors, a misdemeanor of the third degree, and (b) pleas of no contest to fifteen counts of involuntary deviate sexual intercourse with a child, each graded a felony of the first degree, and five counts of aggravated indecent assault, each graded a felony of the second degree. 1 At No. 0606 Criminal term, Defendant entered pleas of guilty to two counts of corruption of minors, each graded a misdemeanor of the first degree, and two counts of selling or furnishing liquor or malt or brewed beverages to minors, each a misdemeanor of the third degree.2 The Commonwealth and Defendant agreed upon an aggregate prison sentence to be imposed of not less than nine years nor more than 20 years. The case was referred by the court to the Pennsylvania Sexual Offenders 1 Order of Court, August 15, 2006. 2 Order of Court, August 15, 2006. Assessment Board for an assessment of whether Defendant should be classified as a sexually violent predator. 3 An affirmative response was received from the Board by letter dated October 16, 2006.4 On October 26, 2006, the Commonwealth filed a Praecipe Pursuant to 42 Pa. C.S.A. 99795.4(e), requesting a hearing to determine whether Defendant should be classified by the court as a sexually violent predator.s The hearing was held on February 16, 2007. F or the reasons stated III this opIlllOn, Defendant will not be classified as a sexually violent predator. STATEMENT OF FACTS The facts of the various offenses pled to were placed on the record at the time of the pleas by Assistant District Attorney, Matthew P. Smith, Esq., and Defendant's counsel, Gregory B. Abeln, Esq., as follows: MR. SMITH: The facts at 0960-2006, in 2001, [Defendant] Jonathan Russel Yingst met and befriended the [S.] family living in Hampden Township, Cumberland County. He also befriended the [family's] daughter, then 11 year old [KS.] Thereafter, he systematically used his influence as an adult, friend, teacher, and neighbor to groom and sexually assault [K] over the course of the next 5 years. He accomplished these tasks by convincing the [family] that he was just taking the victim to school or for ice cream or to the gym or various innocuous places throughout Cumberland County and also the Commonwealth of Pennsylvania. Specifically, the first act began at age 11 when the victim was over at the Defendant's house in his computer room. The Defendant rubbed his hands over the groin area of the victim outside of her pants. The acts then subsequently escalated from there in the coming months and years. All of these acts overall were too numerous to count, but by a conservative estimate, the Defendant placed his fingers inside the victim's vagina at least 5 times before she was 13, and at least 5 times when she was older than 13, but less than 16. The Defendant also inserted his tongue into the victim's vagina at least 10 times when she was less than 13 years old, and at least 10 times when the victim was older than 13, but less than 16. The victim again stated the acts would happen at least 10 times a month over a period of 5 years, but again 3 Order of Court, August 15, 2007. 4 Commonwealth's Exhibit 2, Hearing, February 2,2007. 5 Praecipe Pursuant to 42 Pa. C.S.A. s9795.4(e), filed October 23,2006. -2- they were too numerous to count accurately. The Defendant also inserted his penis in the victim's mouth at least 5 times before she was 13, and at least 5 times when she was older than 13, but less than 16. The victim again stated these acts were too numerous to count over the period of 5 years. The Defendant did also fondle the breasts of the victim on at least 5 occasions when the victim was less than 13 years of age, and at least 5 occasions when the victim was older than 13, but less than 16. Again, these acts were also too numerous to count accurately. The Defendant also had the victim masturbate him to the point of ejaculation on at least 5 occasions before she was 13, and at least 5 occasions when she was older than 13, but less than 16. Lastly, the Defendant had sexual intercourse - that is penis into the victim's vagina - one week before her 15th birthday, and thereafter it happened at least 5 times, by a conservative estimate. The Defendant also - THE COURT: What age was the victim? MR. SMITH: When she was 15, but less than 16. THE COURT: All right. MR. SMITH: The Defendant also gave the victim alcoholic beverages on at least 5 occasions. All of these acts tended to corrupt the morals of [KS.]. [KS.] was between 11 and 15 during these acts, and the Defendant was approximately 31 to 36 years old at the time of these acts. THE COURT: All right. What is the date of birth of the victim? MR. ABELN: 8/20/89. THE COURT: August 20, 1989. And what is the date of the birth of the Defendant? MR. ABELN: 6/21/69. THE COURT: All right. Mr. Smith. MR. SMITH: The facts of the next case - THE COURT: This would be at No. 0606-2006 Criminal Term? MR. SMITH: That is correct, Your Honor. February 4th and 5th of 2005, at the Defendant's house in Cumberland County, Pennsylvania, both [KS.] and also another female, age 16, [AG.], were over at the Defendant's house. The Defendant had earlier taken them to bowling and had come back to his house, this was approximately 11, 11:30 at night, and was providing them with alcoholic beverages. He then took [K] home. [AG.] was so drunk that he could not take her home without arousing suspicion. So he brought her back to his house. She was so drunk that she was throwing up. She laid down on the courch, and as part of the Corruption of Minors charge, he attempted to have some sort of -3- sexual contact with her. Those are the facts at that docket. THE COURT: All right. And these incidents occurred on February 4, 2005, and- MR. SMITH: And the 5th. It went into the morning of the 5th. THE COURT: And February 5 of2005? MR. SMITH: Correct, Your Honor. THE COURT: And where did they occur? MR. SMITH: They occurred at the Defendant's residence. MR. ABELN: ... [I]n Mechanicsburg. THE COURT: In Mechanicsburg, Cumberland County, Pennsylvania? MR. ABELN: Correct. Yes, sir. THE COURT: All right. And the events recited at No. 0960- 2006 Criminal Term occurred where? MR. ABELN : Various places, Your Honor. MR. SMITH: Course of conduct. His house, her house. * * * THE COURT: Cumberland County? So all of these events occurred m * * * MR. SMITH: For this purpose, Your Honor, all of the events -- all of the charges he's pleading guilty [to] took place in Cumberland County.6 The plea bargain was also conditioned upon Defendant's agreement "to confess to a third victim by the initials C.S."7 With respect to this third victim, the assistant district attorney stated that "[i]t is our understanding the facts that were proffered to us constitute the charge of Aggravated Indecent Assault and happened no more than twice. Based upon those facts, we will not be seeking prosecution. "8 It appears that Defendant subsequently denied any wrongdoing with respect to the alleged third victim, but the Commonwealth has not moved to rescind the plea bargain. 6 NT 6-12, Guilty Plea Colloquy, August 15,2006. 7 NT 3, Guilty Plea Colloquy, August 15, 2006. 8 NT 12-13, Guilty Plea Colloquy, August 15, 2006. -4- It may be noted that Defendant's educational background included a bachelor's degree and a master's degree. His professional background included 11 years as an elementary school teacher and coach. He met the victim when she was eight years old and a neighbor. The sexual abuse, as previously mentioned, began when the victim was 11 years old. At the hearing conducted by the court to determine whether, under Megan's Law II, 42 Pa. C.S. 999791-9799, Defendant should be designated a "sexually violent predator," the Commonwealth presented the testimony of Dr. Robert Martin Stein, a licensed psychologist in the state of Pennsylvania with a doctorate in neurological and cognitive psychology, and a member of the Pennsylvania Sexual Offenders Assessment Board; Defendant presented the testimony of Dr. Stanley E. Schneider, also a licensed psychologist in the state of Pennsylvania. Dr. Stein's professional experience included the treatment of 750 sex offenders. Dr. Schneider's practice only rarely included such treatment. Dr. Stein was permitted to testify, as proffered, as an expert in the field of psychology and the treatment and assessment of sexual offenders; Dr. Schneider was permitted to testify, as proffered, as an expert in the field of psychology and the assessment and diagnosis of sexual offenders. Both experts agreed that Defendant had a condition meeting one of the statutory criteria for a sexually violent predator-a mental abnormality or personality disorder-in the form of paraphilia, not otherwise specified. N or is it disputed that Defendant met a second statutory criterion in terms of his conviction of a qualifying sexually violent offense. The experts were not in agreement, however, as to whether the third statutory criterion-a likelihood that Defendant would engage in predatory sexually violent offenses in the future because of the mental abnormality or personality disorder-was met in Defendant's case. Defendant declined to submit to an interview with an investigator of the Board, as a consequence of which Dr. Stein did not have the benefit of his direct input into the assessment. Based upon a review of all of the statutory factors relevant to the issue, Dr. -5- Stein concluded that Defendant met the criteria for a sexually violent predator. With respect to the predatory nature of his conduct and the likelihood of recidivism, Dr. Stein stated, inter alia: Predatory behavior exists when the individual establishes or promotes a relationship with the victim for the purpose of sexual victimization. There must be sufficient evidence of such a relationship to satisfy the Board criteria. With the first act of sexual touching, Yingst established a sexually victimizing relationship with victim K.S. This relationship was maintained through repeated hands-on sexual acts over four years. The relationship was promoted through the use of grooming behaviors, including giving of gifts, writing poems for her, providing alcohol for her, and trying to get her to watch pornography and use sex toys. There is sufficient information to conclude that a predatory relationship was established and maintained with victim K.S. * * * * Yingst engaged in hundreds of sexual acts with a child aged 11-15 over a period of four years. The large number [of] acts that occurred before the child was age 13 would generally indicate a diagnosis of Pedophilia, which would describe sexual attraction to children. Without a medical report, it is not clear that the child was pre- pubescent. The behaviors confirm a diagnosis of Paraphilia NOS. . . , in that victim K.S. would be considered a "child or nonconsenting person." Because of the large number of hands-on sexual acts, the large variety of sexual acts, and the long duration (4 years) over which they occurred, this is a behavior pattern that is likely to continue once released from custody. Dr. Stein's report was predicated upon there being "two victims in the current offense," but in his testimony he corrected this assumption and testified that his opinion was based solely on Defendant's conduct with respect to K.S. He opined that Defendant was not curable, and that treatment would have only a "slight effect," noting that "you can manage the behavior [of such persons] with a slight reduction of recidivism upon successful completion of a program." He felt that Defendant did not display unusual cruelty, was not a physically violent person, and had not shown evidence of an anti-social behavior pattern. -6- Dr. Schneider met with Defendant on December 22, 2006, and January 2, 2007, and obtained from Defendant a psycho-sexual life history and personality inventory. Based upon his review of the case, Dr. Schneider concluded that Defendant did not meet the criteria for a sexually violent predator in terms of a likelihood to reoffend. In essence, Dr. Schneider's view was that Defendant had eventually "adultified" the victim, perceiving her as his soul mate. In describing this relationship, Dr. Schneider testified as follows: . . . [H]e became involved with [K], and by his own admission and description developed a distorted perception of her, overidentifying her emotionally. He got involved with her physically identifying her as his true friend, finding her the most responsible to and receptive of his love and affection compared to any other person in his life. The relationship was not originally established for sexual purposes, but clearly did evolve into a physical and sexual relationship with time. He distorted his relationship with her. He adultified her. He clearly abused her sexually. He recognizes that. * * * * . . . He had little insight as he was going through this relationship with [K] as to what his own motivations were other than he loved her. He loved her sincerely. He loved her deeply. . . . . . . There's nothing in his background, nothing in the test findings to indicate that he would violate another person's rights in the future. Dr. Schneider indicated his agreement with Dr. Stein's view that only "a small percentage [of persons in Defendant's category] can be rehabilitated and do not reoffend." However, he opined that "Mr. Yingst is one of those gentlemen who would not reoffend," and noted that he had already "benefited from. .. minimal counseling at the [Cumberland County] prison." As a prisoner in the state prison system, Defendant would have the benefit of treatment programs dealing with both pedophilia and paraphilia. DISCUSSION Under 42 Pa. C.S. 99795.4(e)(1) (Megan's Law II), upon praecIpe by the Commonwealth in cases of the present type the sentencing court is to hold a hearing to determine whether the defendant should be classified as a sexually violent predator.› -7- "Predatory" is defined in 42 Pa. C.S. 99792 relates to "[a]n act directed at a stranger or at a person with whom a relationship has been initiated, established, maintained or promoted, in whole or in part, in order to facilitate or support victimization." Section 9792 defines a "sexually violent predator" as: A person who has been convicted of a sexually violent offense as set forth in 9795.1 (relating to registration) and who is determined to be a sexually violent predator under section 9795.4 (relating to assessments) due to a mental abnormality or personality disorder that makes the person likely to engage in predatory sexually violent offenses. . . . A "mental abnormality" is defined in Section 9792 as "[ a] congenital or acquired condition of a person that affects the emotional or volitional capacity of the person in a manner that predisposes that person to the commission of criminal sexual acts to a degree that makes the person a menace to the health and safety of other persons." This court held in Commonwealth v. Wright, 54 Cumberland L.1. 149 (2005) (Bayley, 1.), following Commonwealth v. Krouse, 2002 PA Super. 162, ,-r12, 799 A.2d 835, 845-46, that unproven allegations of offenses are not admissible in a hearing to determine whether a defendant is a sexually violent predator. In Krouse, Judge Bowes noted in a concurring opinion: . . . that a determination that a defendant is a sexually violent predator cannot be based upon unproven allegations that are not established by the factual basis for a guilty plea and that are not supported by the nature of the charges to which a defendant has pled guilty, especially when the defendant has consistently denied the unproven allegations. Commonwealth v. Berrigan, 369 Pa. Super. 145, 535 A2d 91 (1987) (en banc) (when imposing sentence, the sentencing court is not permitted to rely upon denied allegations established only through hearsay). This procedure is equivalent to the prohibited procedure whereby a sentencing court, when sentencing the defendant, has relied upon the facts of a crime which the jury determined the defendant has not committed. See Commonwealth v. Smith ton, 429 Pa. Super. 55, 631 A2d 1053 (1993). The determination of sexually violent predator status carries with it serious, life-long repercussions, and must be based upon facts of record, and not mere allegations of wrongful conduct, no matter how egregIOUS. The Commonwealth has the burden of proving by clear and convincing evidence that defendant is a sexually violent predator. 42 Pa.C.S. 99795.4(e)(3). Clear and convincing evidence is evidence that is so clear, direct, weighty, and convincing as to enable the fact-finder to come to a clear conviction, without hesitancy, of the truth of the -8- precise facts of the issue. See Lessner v. Rubinson, 527 Pa. 393, 592 A.2d 678 (1991). In Commonwealth v. Krouse, 799 A.2d 835, 842 (Pa. Super. 2002), the Superior Court of Pennsylvania stated: [W]e strongly recommend that trial courts present specific findings of fact regarding the findings necessary for a SVP determination as defined in Section 9792 and the factors specified in Section 9795.4(b) which the legislature has deemed relevant. Section 9795.4(b) of Megan's Law II specifies that an assessment shall include, but not be limited to, the following: (1) Facts of the current offense, including: (i) Whether the offense involved multiple victims. (ii) Whether the individual exceeded the means necessary to achieve the offense. (iii) The nature of the sexual contact with the victim. (iv) Relationship of the individual to the victim. (v) Age of the victim. (vi) Whether the offense included a display of unusual cruelty by the individual during the commission of the cnme. (vii) The mental capacity of the victim. (2) Prior offense history, including: (i) The individual's prior criminal record. (ii) Whether the individual completed any pnor sentences. (iii) Whether the individual participated III available programs for sexual offenders. (3) Characteristics of the individual, including: (i) Age of the individual. (ii) Use of illegal drugs by the individual. -9- (iii) Any mental illness, mental disability or mental abnormality. (iv) Behavioral characteristics that contribute to the individual's conduct. (4) Factors that are supported in a sexual offenders assessment filed as criteria reasonably related to the risk of reoffense. A review of the criteria set forth in Section 9795.4(b) of Megan's Law II results in the following: WHETHER THE OFFENSE INVOLVED MULTIPLE VICTIMS Both experts assumed that the offense involved one victim. WHETHER DEFENDANT EXCEEDED THE MEANS NECESSARY TO ACHIEVE THE OFFENSES Defendant did not exceed the means necessary to achieve the offenses. THE NATURE OF THE SEXUAL CONT ACT WITH THE VICTIM The extensive and extended sexual contact with the victim has been detailed in the plea colloquy quoted above. RELATIONSHIP OF DEFENDANT TO THE VICTIM Defendant and the victim were neighbors. AGE OF THE VICTIM The offenses began when the victim was eleven years of age and continued for five years. WHETHER THE OFFENSE INCLUDED A DISPLAY OF UNUSUAL CRUEL TY BY DEFENDANT DURING THE COMMISSION OF THE CRIME The offenses did not display unusual cruelty by Defendant. THE MENTAL CAPACITY OF THE VICTIM The victim had no abnormal mental condition. PRIOR CRIMINAL RECORD Defendant has no prior criminal record. -10- WHETHER DEFENDANT HAS COMPLETED ANY PRIOR SENTENCES Defendant has never been sentenced. WHETHER DEFENDANT PARTICIPATED IN AVAILABLE PROGRAMS FOR SEXUAL OFFENDERS Following his arrest, Defendant has begun to participate in a program for sexual offenders at the Cumberland County Prison, but the treatment thus far has been minimal. AGE OF DEFENDANT Defendant was 31 at the time the five-year series of offenses began and is presently 36. USE OF ILLEGAL DRUGS BY DEFENDANT There is no evidence of illegal use of drugs by Defendant. ANY MENTAL ILLNESS, MENTAL DISABILITY OR MENTAL ABNORMALITY Defendant meets the criteria for a diagnosis of Paraphilia, not otherwise specified. BEHAVIORAL CHARACTERISTICS OF DEFENDANT THAT CONTRIBUTED TO HIS CONDUCT Behaviorial characteristics of Defendant that contributed to his conduct included, as indicated by Dr. Stein, "the use of grooming behaviors, including giving of gifts, writing poems for [the victim], providing alcohol for her, and trying to get her to watch pornography and use sex toys." FACTORS THAT ARE SUPPORTED IN A SEXUAL OFFENDER ASSESSMENT FILED AS CRITERIA REASONABLY RELATED TO THE RISK OF REOFFENSE Factors supported in a sexual offender assessment filed in this case that tend to increase the risk of reoffense include the Defendant's mental abnormality or personality disorder in the form of paraphilia, not otherwise specified, the generally unfavorable prognosis associated with such a diagnosis, and the extensive and extended history of abuse of the victim by Defendant. Factors which either do not raise the risk of recidivism, or reduce its likelihood, include Defendant's lack of criminal history, the absence of proven multiple victims, Defendant's perception of the particular victim in this case as his soul mate, Defendant's contrition and acceptance of criminal liability for -11- his conduct, Defendant's imminent punishment in the form of a period of up to twenty years in a state correctional institution, and the availability of treatment for his condition at the state prison. The testimony of the experts in this case was extremely helpful and consistent on most points, but diverged on the issue of likelihood to reoffend. Given the heavy burden of proof upon the Commonwealth on the issue of sexually violent predator status, and after weighing the factors bearing upon the issue, the court is not of a "clear conviction, without hesitancy," that Defendant meets all of the criteria required for classification as a sexually violent predator. Accordingly, the following order will be entered: ORDER OF COURT AND NOW, this 26th day of February, 2007, the court finds that Defendant, John Yingst, has not been shown by clear and convincing evidence to be a sexually violent predator. By the Court, s/ 1. Wesley Oler, Jr. 1. Wesley Oler, Jr., 1. Matthew P. Smith, Esquire F or the Commonwealth Gregory B. Abeln, Esquire F or Defendant Probation Office -12- -13- COMMONWEALTH IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA v. JOHN YINGST CP-2l-CR-960-2006 CP-2l-CR-606-2006 IN RE: SEXUALLY VIOLENT PREDATOR DETERMINATION BEFORE OLER, J. ORDER OF COURT AND NOW, this 26th day of February, 2007, the court finds that Defendant, John Yingst, has not been shown by clear and convincing evidence to be a sexually violent predator. By the Court, 1. Wesley Oler, Jr., 1. Matthew P. Smith, Esquire F or the Commonwealth Gregory B. Abeln, Esquire F or Defendant Probation Office