2005 Ohio 6550 | Ohio Ct. App. | 2005
{¶ 2} On November 17, 2003, Detective Mark Hayes of the Pornography and Child Exploitation Unit of the Hamilton Police Department was online, posing as a 14-year-old female to investigate persons who use the internet to solicit children for sexual activity. Detective Hayes was using the screen name, "andi_girl_14." A person using the screen name, "dmw2746," who was later identified as appellant, contacted andi_girl_14 via "instant" or "private" message.
{¶ 3} Appellant communicated with andi_girl_14 on several occasions between November 17, 2003 and December 19, 2003, soliciting "her" to engage in vaginal intercourse, fellatio, and cunnilingus with him. During that time, appellant provided identifying information to andi_girl_14, including, but not limited to, his name in an e-mail, his age and his area of residence. Appellant also sent several off-line messages to andi_girl_14 between December 1, 2003 and December 18, 2003.
{¶ 4} During the course of their communications, appellant and andi_girl_14 exchanged photographs by way of e-mail. Appellant sent a photograph of himself to andi_girl_14, and Detective Hayes, posing as andi_girl_14_, sent a photograph of an actual 14-year-old female to appellant. Additionally, Hamilton Police Officer Goldie Robinson, while posing as andi_girl_14, telephoned appellant, as appellant had requested of andi_girl_14. Their conversation was recorded.
{¶ 5} On December 19, 2003, appellant suggested a meeting between himself and andi_girl_14, and the two arranged to meet on that date. The meeting was to occur at the Arby's restaurant in the city of Hamilton, in Butler County, Ohio. Appellant indicated that he would arrive at this location at 6:30 p.m. on December 19, 2003 in a jeep, and that the purpose of the meeting was to "fuck tonight."
{¶ 6} On December 19, 2003, appellant arrived at Arby's in a jeep and drove around the restaurant. He then drove to the apartment complex where andi_girl_14 had indicated she lived. Appellant was arrested at the 1000th block of N.W. Washington Blvd., in Hamilton.
{¶ 7} Upon being arrested, appellant was transported to the Hamilton Police Department, where he was advised of his Miranda rights. After executing a written waiver of his Miranda rights, appellant gave a written statement to Detective Hayes, in which he admitted using the screen name, dmw2746. Appellant also admitted that he had been chatting with andi_girl_14 and that he thought andi_girl_14 was a 14-year-old child. He further admitted to talking with andi_girl_14 about having sex at his apartment that night. Appellant told Detective Hayes that his date of birth was January 25, 1979.
{¶ 8} On March 3, 2004, appellant was indicted by the Butler County Grand Jury on one court of importuning in violation of R.C.
{¶ 9} On May 25, 2004, appellant moved to dismiss the indictment against him on numerous grounds, including that R.C.
{¶ 10} On August 30, 2004, appellant was tried to the court on the charges in the indictment. The parties stipulated to the facts set forth above. The trial court found appellant guilty as charged, based on the stipulated facts.
{¶ 11} At appellant's dispositional hearing, the trial court classified appellant as a "sexually oriented offender," after finding the classifications of "sexual predator" and "habitual sexual offender" to be inapplicable. Appellant then moved to have the trial court declare the registration requirements of R.C.
{¶ 12} The trial court overruled appellant's motions to declare the registration requirements of R.C.
{¶ 13} Appellant now appeals from his conviction and sentence, raising five assignments of error, which we shall address in an order that facilitates our analysis.
{¶ 14} Assignment of Error No. 1:
{¶ 15} "THE TRIAL COURT ERRED TO THE PREJUDICE OF APPELLANT BY OVERRULING HIS MOTION TO DISMISS THE SEXUAL OFFENDER CLASSIFICATION PROCEEDINGS, IN DESIGNATING APPELLANT A SEXUALLY ORIENTED OFFENDER, AND REQUIRING APPELLANT HIM [sic] TO FULFILL THE REPORTING REQUIREMENTS OF R.C.
{¶ 16} Appellant argues that the trial court erred in overruling his motion to declare the registration requirements of R.C.
{¶ 17} The trial court classified appellant as a sexually-oriented offender. "A sexually oriented offender is a person who has committed a `sexually oriented offense' as defined in R.C.
{¶ 18} In State v. Boeddeker, Hamilton App. No. C-970471, the court found that "the registration requirements of R.C.
{¶ 19} The Boedekker court could not provide the defendant in that case with the relief he had requested because there was no registration order in the sentencing court's judgment entry. Nevertheless, the First District Court of Appeals later followed the principle enunciated in Boedekker, in State v. Anthony,
{¶ 20} Appellant cites Anthony in support of his claim that the registration requirements for sexually-oriented offenders violate the Equal Protection and Due Process Clauses of the United States and Ohio Constitutions. However, as appellant himself acknowledges, the First District Court of Appeals overruled Anthony in State v. Cooper, Hamilton App. No. C-030921,
{¶ 21} In Cooper, the court held that "once an individual is convicted of a sexually oriented offense, he is automatically classified as a sexually oriented offender and, as long as there is evidence of sexual motivation, he must comply with the registration requirements of R.C.
{¶ 22} This court followed Cooper in State v. Meredith,
Warren App. No. CA2004-06-062,
{¶ 23} In light of Cooper and Meredith, we hold that the trial court did not err in overruling appellant's motion to declare the registration requirements of R.C.
{¶ 24} Appellant also argues that the trial court committed plain error by requiring him to register as a sexually-oriented offender because the offense he was found to have committed is a presumptive registration-exempt sexually-oriented offense, pursuant to R.C.
{¶ 25} R.C.
{¶ 26} "`Presumptive registration-exempt sexually oriented offense' means any of the following sexually oriented offenses described in division (P)(1)(a), (b), (c), (d), or (e) of this section, when the offense is committed by a person who previously has not been convicted of, pleaded guilty to, or adjudicated a delinquent child for committing any sexually oriented offense described in division (P)(1)(a), (b), (c), (d), or (e) of this section, any other sexually oriented offense, or any child-victim oriented offense and when the victim or intended victim of the offense is eighteen years of age or older." (Emphasis added.)
{¶ 27} In this case, appellant's "intended victim" was a 14-year-old female, identified by the screen name, "andi_girl_14," who was portrayed on line by Detective Hayes and on the telephone by Officer Robinson. Because appellant's intended victim was not 18 years of age or older, he did not commit a "presumptive registration-exempt sexually oriented offense," as defined in R.C.
{¶ 28} Appellant's first assignment of error is overruled.
{¶ 29} Assignment of Error No. 2:
{¶ 30} "THE TRIAL COURT ERRED TO THE PREJUDICE OF APPELLANT BY OVERRULING HIS MOTION TO RULE R.C.
{¶ 31} Appellant argues that the trial court erred in overruling his motion to declare R.C.
{¶ 32} However, appellant failed to raise in the trial court the specific argument that he is now raising on appeal. At appellant's dispositional hearing, appellant challenged the constitutionality of R.C.
{¶ 33} As previously indicated, Boedekker and Anthony
have been overruled. See Cooper,
{¶ 34} It is well-settled that when a party fails to bring an error to the trial court's attention at a time when the error could have been corrected or avoided altogether, the party will be deemed to have waived that error. State v. Awan (1986),
{¶ 35} The waiver doctrine of Awan has been ruled to be "discretionary." In re M.D. (1988),
{¶ 36} Nevertheless, we decline to recognize the error that appellant is attempting to raise in this assignment of error. Among other things, the record fails to show whether appellant has suffered an actual deprivation of his property rights by operation of R.C
{¶ 37} Appellant's second assignment of error is overruled.
{¶ 38} Assignment of Error No. 5:
{¶ 39} "THE TRIAL COURT ERRED TO THE PREJUDICE OF APPELLANT'S RIGHT TO DUE PROCESS OF LAW UNDER THE
{¶ 40} Appellant argues that the trial court erred in overruling his motion to dismiss count one of the indictment, charging him with importuning in violation of R.C.
{¶ 41} Preliminarily, we note that "[a]n enactment of the General Assembly is presumed to be constitutional, and before a court may declare it unconstitutional it must appear beyond a reasonable doubt that the legislation and constitutional provisions are clearly incompatible." State v. Cook,
{¶ 42} We further note that while appellant has argued that R.C.
{¶ 43} Here, appellant challenges R.C.
{¶ 44} Appellant raises numerous arguments under this assignment of error. First, he challenges R.C.
{¶ 45} "[T]he importuning statute does not prohibit an adult and child from communicating about sex, nor does it prevent two people, regardless of their age, from talking about sexual activity between a child and an adult. [Former] R.C.
{¶ 46} Appellant also asserts that R.C.
{¶ 47} Appellant also argues that R.C.
{¶ 48} Appellant also argues under this assignment of error that R.C.
{¶ 49} "[T]o survive a void-for-vagueness challenge, the statute at issue must be written so that a person of common intelligence is able to determine what conduct is prohibited, and the statute must provide sufficient standards to prevent arbitrary and discriminatory enforcement." State v. Williams,
{¶ 50} Other courts have rejected the claim that R.C.
{¶ 51} Appellant also argues that R.C.
{¶ 52} "Ashcroft is distinguishable from the case at bar. In Ashcroft, the court based its opinion on its view that certain provisions of the [Child Pornography Prevention Act of 1996] violated the
{¶ 53} "Second, the rationale set forth by the government inAshcroft, that there was the attenuated potential at some unspecified time in the future that a hypothetical pedophile might use the material considered protected speech to arouse himself or to improve his chances of engaging in sexual activity with a child, is not present in the case at bar. Here, the immediate potential for a person to use the anonymity of the Internet and unprotected speech to directly solicit a minor to engage in illegal sexual activity is very significant. The harm to children was prevented in this case by the "sting" operation. It was fortunate that Tarbay [i.e., the defendant-appellant in this case] was communicating with an undercover officer whom he only believed was a minor but who was not an actual minor. It appears that the importuning statute served its purpose by preventing harm to a minor.
{¶ 54} "Tarbay also seems to argue that the importuning statute is not narrowly tailored to serve the state's interest, because it applies only to an adult offender who is four years older than the age assumed by the officer posing as a minor. We believe that it is reasonable for the state to find that the impact of a direct solicitation for sex on an adolescent from a much older adult is more damaging than such a solicitation from a person closer in age. [Footnote omitted.] The older adult is more likely to be more sophisticated and better able to coerce or overcome the resistance of a minor.
{¶ 55} "Because [former] R.C.
{¶ 56} Appellant also argues that R.C.
{¶ 57} Contrary to what appellant contends, R.C.
{¶ 58} "In reality, the statute simply employs investigative techniques that have long been accepted in other criminal contexts. For example, law enforcement personnel have historically posed as prostitutes or drug-dealers, and have arrested the individuals who solicited the prostitutes or who attempted to buy or sell drugs." Turner,
{¶ 59} In light of the foregoing, we conclude that R.C.
{¶ 60} Appellant also argues that R.C.
{¶ 61} As the Snyder court stated in rejecting this same argument regarding former R.C.
{¶ 62} "* * * R.C.
{¶ 63} Appellant's fifth assignment of error is overruled.
{¶ 64} Assignment of Error No. 3:
{¶ 65} "THE JUDGMENTS OF CONVICTION ARE CONTRARY TO LAW AND TO THE DUE PROCESS CLAUSE OF THE
{¶ 66} Assignment of Error No. 4:
{¶ 67} "THE JUDGMENTS OF CONVICTION ARE CONTRARY TO THE MANIFEST WEIGHT OF THE EVIDENCE."
{¶ 68} Because appellant argues his third and fourth assignments of error together, we shall address them jointly. However, we note that a challenge based on the sufficiency of the evidence and one based on the weight of the evidence are legally distinct issues. State v. Thompkins,
{¶ 69} Appellant argues that his convictions on both counts in the indictment were not supported by sufficient evidence and are contrary to the manifest weight of the evidence. We disagree with both of these arguments.
{¶ 70} When reviewing whether the evidence presented at trial is sufficient to support a criminal defendant's conviction, "[t]he relevant inquiry is whether, after viewing the evidence in a light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt." State v. Jenks (1991),
{¶ 71} When considering whether a criminal defendant's conviction is against the manifest weight of the evidence, an appellate court, after reviewing the entire record, weighs the evidence, including all reasonable inferences that can be drawn from it, and considers the credibility of the witnesses, to determine whether in resolving conflicts in the evidence, the jury or, in a bench trial, the trial court, clearly "lost its way" and created such a miscarriage of justice that the conviction must be reversed and a new trial ordered. SeeThompkins,
{¶ 72} Appellant argues that he cannot be convicted for violating R.C.
{¶ 73} Initially, we reiterate that R.C.
{¶ 74} Furthermore, R.C.
{¶ 75} Here, appellant stipulated to the fact that he believed that "andi_girl_14" was 14 years old. Based upon the stipulated facts that were entered into the record, we conclude that appellant's conviction for importuning in violation of R.C.
{¶ 76} Appellant also contends that in order to convict a person of importuning under R.C.
{¶ 77} There is nothing in R.C.
{¶ 78} "It is no defense to a charge under this section that, in retrospect, commission of the offense that was the object of the attempt was either factually or legally impossible under the attendant circumstances, if that offense could have been committed had the attendant circumstances been as the actor believed them to be."
{¶ 79} Furthermore, as to appellant's arguments regardingAshcroft,
{¶ 80} Appellant's third and fourth assignments of error are overruled.
{¶ 81} Judgment affirmed.
Powell, P.J., and Young, J., concur.
{¶ b.} "No person shall solicit another by means of a telecommunications device, as defined in section
{¶ c.} "* * *
{¶ d.} "(2) The other person is a law enforcement officer posing as a person who is thirteen years of age or older but less than sixteen years of age, the offender believes that the other person is thirteen years of age or older but less than sixteen years of age or is reckless in that regard, and the offender is four or more years older than the age the law enforcement officer assumes in posing as the person who is thirteen years of age or older but less than sixteen years of age."
{¶ b.} "(A) No person who has been convicted of, is convicted of, has pleaded guilty to, or pleads guilty to either a sexually oriented offense that is not a registration-exempt sexually oriented offense or a child-victim oriented offense shall establish a residence or occupy residential premises within one thousand feet of any school premises."