State v. Davis ( 2022 )

[Cite as State v. Davis, 2022-Ohio-3921.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
STATE OF OHIO, :
Plaintiff-Appellee, :
No. 111365
v. :
ADAM DYAL DAVIS, :
Defendant-Appellant. :
JOURNAL ENTRY AND OPINION
JUDGMENT: AFFIRMED
RELEASED AND JOURNALIZED: November 3, 2022
Criminal Appeal from the Cuyahoga County Court of Common Pleas
Case No. CR-20-652629-A
Appearances:
Michael C. O’Malley, Cuyahoga County Prosecuting
Attorney, and Melissa Riley, Assistant Prosecuting
Attorney, for appellee.
Christopher M. Kelley, for appellant.
CORNELIUS J. O’SULLIVAN, JR., J.:
Defendant-appellant Adam Davis brings this appeal challenging his
convictions for attempted unlawful sexual conduct with a minor, importuning, and
possessing criminal tools. After a thorough review of the record and law, this court
affirms.
I. Facts and Procedural History
Appellant was indicted by a Cuyahoga County Grand Jury on one count
of attempted unlawful sexual conduct with a minor, a fourth-degree felony in
violation of R.C. 2923.02(A); one count of importuning, a fifth-degree felony in
violation of R.C. 2907.07(D)(2); and one count of possessing criminal tools, a fifth-
degree felony in violation of R.C. 2923.24(A).
On August 24, 2020, the Ohio Internet Crimes Against Children Task
Force (“ICAC”) conducted an undercover operation, “Operation Moving Target,” to
find individuals seeking to meet children for sexual activity. Prior to the operation
going live, Detective Kristi Harvey of the Solon Police Department had created an
undercover profile on the app “MeetMe” under the name “Olivia.”1 Detective Harvey
listed the profile as a 29-year-old female from Solon, Ohio. The photograph used
for the profile was of someone affiliated with law enforcement; however, the
photograph was regressed to look like someone much younger.
On August 18, 2020, Detective Harvey received a message on MeetMe
from appellant. Subsequently, the following conversation took place on the
application:
Appellant: You are really pretty[.]
“Olivia”: Thanks! You’re cute[.]
Appellant: Thanks[.]
1 Detective Harvey testified she has been a police officer for 21 years and a detective
for 10 years. She has worked with ICAC since 2015 and received specialized and ongoing
training with ICAC.
Appellant: What are you looking for?
“Olivia”: Fun[.]
Appellant: Awesome[.]
Appellant: Are you willing to meet up with someone if everyone
agrees?
“Olivia”: Sure — want to text me?
Appellant gave “Olivia” his phone number and they began to text with
each other. Just five minutes into the text conversation, “Olivia” asked “are you ok
with younger girls?” Appellant responded “I actually prefer younger.” Appellant
told her he was 41-years-old and “Olivia” texted, “i’m [sic] younger than my profile
says.” Appellant asked, “How old” and “Olivia” responded “15.” Seconds later,
appellant texted “And you want an older guy to f*** you?”
“Olivia” and appellant texted over the course of the next several days.
From the point on August 18 when he learned she was only 15-years-old, until
August 24, 2022, appellant sent approximately 250 text messages to “Olivia.”
Approximately 65 of those messages were explicit and many stated sexual acts the
two could do to or for each other. There were also several text exchanges about the
whereabouts of “Olivia’s” parents. During the course of their conversations, “Olivia”
sent additional nonpornographic pictures of herself to appellant, mainly what are
commonly called selfies. Detective Harvey testified that the additional pictures that
were sent were of the same person as the profile picture in the MeetMe app and were
also regressed so that “Olivia” appeared to be 15-years-old.
Appellant and “Olivia” made plans to meet. On August 24, 2020,
appellant drove to a residential neighborhood in a Cleveland suburb to meet
“Olivia.” On his way to the location, “Olivia” asked him to stop and buy her a can of
blueberry Red Bull. When appellant arrived, he asked “Olivia” to exit the house.
Detective Harvey testified that she was texting with appellant at this time but was
not at the actual meeting location. Instead, a decoy officer was in the house and the
decoy officer waved at appellant to come into the house. Appellant knocked on the
door and was arrested.
At the police station, appellant waived his Miranda rights and spoke
with police detectives. He told the detectives that he was in the neighborhood
looking for his friend’s car. He repeatedly told the detectives that he was being
truthful. The interview was recorded, played for jury during trial, and entered into
evidence.
David Frattare, special investigator and statewide commander of ICAC,
testified generally about how ICAC runs its investigations. Frattare testified
regarding one type of investigation that ICAC conducts:
Investigators would pose * * * as minor children * * * in an effort to
identify offenders or those who are sharing child sexual abuse material
on the internet. We may go out and proactively try and identify those
targets and work up a case or an investigation at that point. * * *
One of our efforts is to identify individuals who may be interested in
traveling to meet minor children for sexual activity. “Travelers,” as we
call them, individuals who engage our undercover officers online
believing that they’re talking to minor children under the age of 16. And
then those individuals travel to a physical location attempting to meet
these children for sexual activity.
According to Frattare, an undercover officer “won’t ever bring up the
topic of sexual activity first. We allow the target or the offender in every case to be
the first to initiate that topic.” Frattare testified that “once the topic of sex and sexual
activity has been brought up, the officer will typically try and determine, you know,
how serious the offender is, whether this is a fantasy or role-play, or whether it’s
actually a serious interest that the target has.” Frattare further testified that
some individuals remain anonymous until the very point that they
knock on the front door. We have a general idea of who they are, we
may not have them a hundred percent identified, but when we ask them
to bring something specific like Red Bull or a bag of pretzels or
something from McDonald’s, and then that individual shows up at the
house at the exact time with that exact item, that’s further proof that
then we have the individual we were talking to online.
According to Frattare, “Operation Moving Target” was a four-day
operation that began on August 24, 2020, and appellant was their number one
target.
Appellant testified that he was employed as a truck driver after serving
13 years in the army where he earned a Purple Heart after being wounded in Iraq.
He testified that he suffers from post-traumatic stress due to his time being
deployed. He testified that he had two prior felony convictions from a neighboring
county where he was a volunteer coach and treasurer of a football league. According
to appellant, he was charged with felony theft and tampering with evidence
stemming from stealing approximately $18,000 from the cash drawer at the
concession stand. He pleaded guilty to the charges.
Appellant testified that after his convictions he sought treatment at the
VA. He was very lonely, after being recently divorced and not having friends or
family close by. Because of his loneliness and his isolation as a truck driver,
appellant decided to join internet dating sites or apps, including “MeetMe.” He
denied that he ever went to a dating web site to look for a sexual relationship with
an underage person.
Appellant thought the picture of “Olivia” looked like “[a] younger adult
woman.” He could tell there were filters on her profile photo, “like a glamour filter
from Snap Chat.” Appellant testified that when “Olivia” told him she was 15-years-
old he thought she was into role playing: “She’s 29 on the website, it’s an adult
website. I joined an adult website you had to be 17 or older to get into. So, I’m
assuming she’s an adult, and this is like a role-play or a fantasy that she’s wanting to
play out.”
Appellant stated that he never pursued finding out whether “Olivia”
was truly 15-years-old because he did not want her to “disappear.” He testified that
he was “starved for human contact” and did not have any friends.
On cross-examination, appellant admitted that he was not divorced
at the time he started messaging with “Olivia” and that his wife filed for divorce a
week after his arrest.
The jury convicted appellant of all counts. The trial court sentenced
appellant to six months in prison on each count, to run concurrently. He was
classified as a Tier II sex offender by operation of law and the trial court notified him
of his reporting requirements.
Appellant timely appealed his sentence, assigning three assignments
of error for our review:
I. Appellant’s convictions are against the manifest weight of the
evidence.
II. Appellant convictions are not supported by sufficient evidence.
III. The trial court erred and abused its discretion by refusing to
provide the jury a copy of the witness’s transcript as requested.
II. Law and Analysis
We address the first two assignments of error together because they
are interrelated.
Sufficiency and Manifest Weight of the Evidence
“A claim of insufficient evidence raises the question whether the
evidence is legally sufficient to support the verdict as a matter of law.”
State v. Parker, 8th Dist. Cuyahoga No. 110716, 2022-Ohio-1237, ¶ 7, citing
State v. Thompkins, 78 Ohio St.3d 380, 367, 678 N.E.2d 541 (1997). The relevant
inquiry in a sufficiency challenge 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 existed beyond a reasonable doubt. State v. Jenks,
61 Ohio St.3d 259, 574 N.E.2d 492 (1991), paragraph two of the syllabus. When
making a sufficiency determination, an appellate court does not review whether the
state’s evidence is to be believed but whether, if believed, the evidence admitted at
trial supports the conviction. State v. Starks, 8th Dist. Cuyahoga No. 91682, 2009-
Ohio-3375, ¶ 25, citing Thompkins at id. Under a sufficiency challenge, witness
credibility is immaterial; the appellate court must defer to credibility determinations
of the trier of fact and only review issues of law. Parker at ¶ 7.
A manifest weight challenge and a sufficiency of the evidence
challenge are two distinct challenges to the evidence presented. State v. Miree,
8th Dist. Cuyahoga No. 110749, 2022-Ohio-3664, ¶ 30, citing State v. Wilson,
113 Ohio St.3d 382, 2007-Ohio-2202, 865 N.E.2d 1264, ¶ 25. A challenge to the
manifest weight of the evidence ‘“involves the inclination of the greater amount of
credible evidence.”’ State v. Harris, 8th Dist. Cuyahoga No. 109060, 2021-Ohio-
856, ¶ 32, quoting Thompkins at id. Weight of the evidence examines “‘the
evidence’s effect of inducing belief.”’ Harris at id., quoting Wilson at id., citing
Thompkins at 386-387. In reviewing a manifest-weight claim, the court must
consider all the evidence in the record, the reasonable inferences drawn from it, and
the credibility of the witnesses to determine ‘“whether in resolving conflicts in the
evidence, the factfinder clearly lost its way and created such a manifest miscarriage
of justice * * *.’” Harris at id., quoting Thompkins at 387, quoting State v. Martin,
20 Ohio App.3d 172, 485 N.E.2d 717 (1st Dist.1983). Finally, the discretionary power
to grant a new trial should be reserved for exceptional cases where ‘“the evidence
weighs heavily against the conviction.’” Thompkins at id., quoting Martin at 175.
Appellant was convicted of attempted unlawful sexual conduct with a
minor. R.C. 2907.04(A), unlawful sexual conduct with a minor, provides, in
pertinent part, that “No person who is eighteen years of age or older shall engage in
sexual conduct with another, who is not the spouse of the offender, when the
offender knows the other person is thirteen years of age or older but less than sixteen
years of age, or the offender is reckless in that regard.” R.C. 2923.02, criminal
attempt, provides:
(A) No person, purposely or knowingly, and when purpose or
knowledge is sufficient culpability for the commission of an offense,
shall engage in conduct that, if successful, would constitute or result in
the offense.
(B) 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.
Appellant was also convicted of importuning, R.C. 2907.02(D)(2):
(D) No person shall solicit another by means of a
telecommunications device, as defined in section 2913.01 of the
Revised Code, to engage in sexual activity with the offender when
the offender is eighteen years of age or older and either of the
following applies:
(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.
Finally, appellant was convicted of possessing criminal tools,
R.C. 2923.24(A), which provides, that “No person shall possess or have under the
person’s control any substance, device, instrument, or article, with purpose to use it
criminally.”
Mens Rea
The mens rea at issue in appellant’s convictions for attempted
unlawful sexual conduct with a minor, importuning, and disseminating matter
harmful to juveniles is knowledge or recklessness.
Pursuant to R.C. 2901.22(B),
a person acts knowingly, regardless of purpose, when the person
is aware that the person’s conduct will probably cause a certain
result or will probably be of a certain nature. A person has
knowledge of circumstances when the person is aware that such
circumstances probably exist. When knowledge of the existence
of a particular fact is an element of an offense, such knowledge is
established if a person subjectively believes that there is a high
probability of its existence and fails to make inquiry or acts with
a conscious purpose to avoid learning the fact.
(Emphasis added.)
Pursuant to R.C. 2901.22(C),
a person acts recklessly when, with heedless indifference to the
consequences, the person disregards a substantial and
unjustifiable risk that the person’s conduct is likely to cause a
certain result or is likely to be of a certain nature. A person is
reckless with respect to circumstances when, with heedless
indifference to the consequences, the person disregards a
substantial and unjustifiable risk that such circumstances are
likely to exist.
The mens rea at issue for possessing criminal tools conviction is
purposeful. Pursuant to R.C. 2901.22(A),
a person acts purposely when it is the person’s specific intention
to cause a certain result, or, when the gist of the offense is a
prohibition against conduct of a certain nature, regardless of
what the offender intends to accomplish thereby, it is the
offender’s specific intention to engage in conduct of that nature.
Appellant’s argument on appeal is that there is insufficient evidence
to support his convictions and his convictions are against the manifest weight of the
argument because the state could not show that he knew or should have known that
“Olivia” was 15-years-old.
Appellant does not dispute that “Olivia” sent him a text message that
said she was only 15-years-old. Rather, appellant argues that he did not believe her
and thought that she was acting out fantasy or role-playing, therefore, he had no
knowledge of “Olivia’s” purported age, nor did he act recklessly in that regard.
Appellant contends that his belief that “Olivia” was a 29-year-old female, as her
dating profile stated, was valid, because he had to submit a copy of his driver’s
license to join the app, so he assumed “Olivia” had to do the same. He argues that
based on his experience with adult online dating sites, many users are into seemingly
bizarre fetishes, fantasies, and or role-playing, so when “Olivia” stated she was 15-
years-old, he believed it was part of some type of role play.
We find that the state presented legally sufficient evidence to sustain
a guilty verdict on the charged offenses. Appellant initiated a sexual conversation
with “Olivia” and continued the conversation once she told him she was only 15-
years-old. After a brief conversation on the app “MeetMe,” appellant and “Olivia”
began texting. The first text appellant sent was at 2:12 pm on August 18, 2020. Five
minutes into the text conversation, at 2:17 pm, “Olivia” told appellant she was “15.”
Rather than immediately terminating the conversation once “Olivia” told appellant
she was a child, he replied: “And you want an older guy to f*** you?”
Appellant never tried to ascertain whether “Olivia” said she was 15 as
part of a fantasy or role-playing game. Instead, appellant continued to communicate
with “Olivia” and sent her approximately 250 text messages. Approximately 65 of
those text messages were explicit and many of the explicit text messages stated
sexual acts the two could do to or for each other.
Other indicators that appellant had knowledge that “Olivia” was 15-
years-old include, “I’d never talk to your mom or anyone else about this,” “If an adult
had answered [the phone], I would have acted like a telemarketer,” “what about your
parents,” and multiple statements about “Olivia” being at her dad’s house. At one
point, “Olivia” texted that if her mom found her phone, she would be “grounded.”
Appellant also told “Olivia” that she “wouldn’t get in much trouble” if they were
caught but that he “would go to jail” and “I’d literally get 10 years in prison.”
Whether appellant knew or acted recklessly turns on the credibility of
the witnesses and evidence presented at the trial. The “trier of fact is free to believe
all, some, or none of the testimony of each witness appearing before it.”
State v. Williams, 2019-Ohio-794, 132 N.E.3d. 1233, ¶ 28 (8th Dist.).
As to the possessing criminal tools conviction, we find that the state
presented legally sufficient evidence to sustain a guilty verdict and that verdict is
also not against the manifest weight of the evidence. It is undisputed that appellant
used his Samsung Galaxy phone to engage in criminal conduct by exchanging
messages that were sexual in nature with an undercover law enforcement agent
purporting to be 15-years-old. This evidence, if believed, is sufficient to convince the
average mind that appellant purposely used his phone to engage in criminal
conduct. State v. Koran, 8th Dist. Cuyahoga No. 110923, 2022-Ohio-2410, ¶ 52.
Having reviewed the record, weighing the evidence, reviewing all
reasonable inferences, and examining witness credibility, we cannot conclude that
the jury lost its way and created such a manifest miscarriage of justice to warrant a
new trial. The jury heard the state’s evidence, as well as the state’s position that
appellant knew “Olivia’s” age or acted recklessly in that regard. The jury also heard
appellant’s testimony that he thought she was 29-years-old as his explanation for
his actions. This is not the exceptional case, which creates “such a manifest
miscarriage of justice that the conviction must be reversed, and a new trial ordered.”
Thompkins, 78 Ohio St.3d at 387, 678 N.E.2d 547.
Accordingly, appellant’s first and second assignments of error are
overruled.
Jury Question
In the third assignment of error, appellant contends that the trial
court abused its discretion by refusing to provide the jury a copy of the trial
transcript. Appellant claims that the jury “struggled” with the issue of whether there
was sufficient evidence that appellant knew “Olivia” was 15-years-old and whether
he intended to engage in sexual activity with her.
An abuse of discretion occurs when a court exercises its judgment in
an unwarranted way regarding a matter over which it has discretionary
authority. Johnson v. Abdullah, 166 Ohio St.3d 427, 2021-Ohio-3304, 187 N.E.3d
463, ¶ 35. Such an abuse ‘“implies that the court’s attitude is unreasonable, arbitrary
or unconscionable.’” State v. Montgomery, Slip Opinion No. 2022-Ohio-2211, ¶ 135,
quoting Blakemore v. Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140 (1983).
See also State v. Acosta, 8th Dist. Cuyahoga No. 111110, 2022-Ohio-3327,
¶ 43; State v. Parker, 8th Dist. Cuyahoga No. 110562, 2022-Ohio-377, ¶ 11.
During deliberations, the jury sent a question to the trial court asking
if it could see the transcript of Detective Harvey’s testimony because “We have a
question about how she says the female officer at the house waived the defendant
in?” The trial court denied the request, writing to the jury that it must rely on its
collective memory.
The Ohio Supreme Court has held that ‘“[a]fter jurors retire to
deliberate, upon request from the jury a court may, in the exercise of sound
discretion, cause to be read all or part of the testimony of any witness * * *.”’
State v. Majid, 8th Dist. Cuyahoga No. 96855, 2012-Ohio-1192, ¶ 101, quoting
State v. Berry, 25 Ohio St.2d 255, 267 N.E.2d 775 (1971). In Majid, the jury, while
deliberating, asked the trial court if it could review a transcript of the testimony of a
witness along with all witnesses’ statements. Without objection from the state or
appellant’s counsel, the trial court instructed the jury to rely on their collective and
individual memories of the testimony along with the exhibits accepted into evidence.
The Majid court found that the trial court was under no mandatory obligation to
provide the requested transcript to the jury. Id.Likewise, here, the record does not reflect that either party objected
to the court’s response to the jury question. Appellant has failed to show that the
trial court abused its discretion.
The third assignment of error is overruled.
Conclusion
There was sufficient evidence to support appellant’s convictions for
attempted unlawful sexual conduct with a minor, importuning, and possessing
criminal tools and those convictions are not against the manifest weight of the
evidence. Further, the trial court did not abuse its discretion in not providing the
jury the trial transcript during deliberations.
Judgment affirmed.
It is ordered that appellee recover from appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal. The
defendant’s convictions having been affirmed, any bail pending is terminated.
Case remanded to the trial court for execution of sentence.
It is ordered that a special mandate issue out of this court directing the
common pleas court to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27
of the Rules of Appellate Procedure.
______________________________
CORNELIUS J. O’SULLIVAN, JR., JUDGE
SEAN C. GALLAGHER, A.J., and
KATHLEEN ANN KEOUGH, J., CONCUR