Although the law enforcement officers presented Mr. Carver the opportunity to commit the sex offense, the evidence in this case demonstrates that Mr. Carver was predisposed to commit the crime when the opportunity presented itself. Mr. Carver has not demonstrated that his conviction was procured through entrapment, and the conviction for importuning is not against the weight of the evidence.
State v. Carver
2022 – Ohio – 3238
Eighth District Appellate Court
Cuyahoga County, Ohio
September 15, 2022
On an unknown date, Mr. Joshua Carver, then 32 years old, contacted “Isabella” through a dating website. “Isabella’s” profile suggested she was 43 years old, although the profile picture depicted a much younger, if not teenaged, female, depending on the observer’s perspective. After a brief discussion on the website’s platform, Mr. Carver agreed to use the text messaging application associated with his personal phone number. For about 30 minutes, “Isabella” and Mr. Carver sporadically texted back and forth, mostly discussing biographical information and engaging in idle chitchat, but in those messages “Isabella” told Mr. Carver she was 15 years old and was staying home from school for the day. Upon learning of “Isabella’s” age, Mr. Carver asked: “Do [you] think [you] could handle a big guy like me?” “Isabella” sought an explanation for that statement. Mr. Carver evaded the question, saying he wanted to hear her voice first before discussing details. He then reiterated that he “had a lot of muscle” and “Isabella’s” mother would likely not approve of their relationship.
Mr. Carver asked to speak with “Isabella” on the telephone, but “Isabella” had to “wait for her mom” to leave the house before making the call. In reality, the law enforcement officer conversing with Mr. Carver through text messaging was waiting for the female undercover officer to arrive to her shift to provide “Isabella” a voice.
In the first telephonic conversation, Mr. Carver told “Isabella” that he wanted to meet at “Isabella’s” house but did not want her neighbors to see him or his car. “Isabella” asked Mr. Carver about his plans if they met in the nearby park. Mr. Carver said he wanted to make sure she was real, professing a fear their meeting was a scam. He also articulated his fear of going to jail because he was twice her age. By the third phone conversation, an hour into their encounter, “Isabella” again (several times in fact) asked what Mr. Carver’s intentions were. Mr. Carver said he did not want to get into “explicit” details, but he is “a big guy,” a “stallion,” shading the discussion in a sexually suggestive manner. He further stated that he “definitely” wanted to do more than hold hands with the purported 15-year-old and would bring his “Magnum” condom to their meeting. In that same conversation, Mr. Carver again mentioned that he wanted to make sure he was not going to get in trouble with the police. “Isabella” responded that she did not want to get in trouble either but just wanted to know what Mr. Carver had planned for their meetup.
By the fourth phone conversation, all but the first initiated by Mr. Carver, upon learning that “Isabella” was a virgin, Mr. Carver told “Isabella” that he would like to perform a specific sexual act with her if they met at the park near her “house.” Mr. Carver agreed and did in fact travel to the designated location, where he was arrested by law enforcement officers after he arrived at the designated meeting location with the “Magnum” condom he told “Isabella” about. In his initial interview with the arresting officers, Mr. Carver admitted he knew he was breaking the law but blamed his conduct on “Isabella’s” persistence in getting him to admit his sexual intentions — telling the officers that “Isabella” had expressly asked Mr. Carver to describe his intended sex acts but that he had no intentions of doing anything other than holding hands.
Entrapment became Mr. Carver’s primary defense to the charges for unlawful sexual conduct with a minor, in violation of O.R.C. § 2923.02 and § 2907.04(A), importuning, in violation of O.R.C. § 2907.07(D)(2), and possessing criminal tools, in violation of O.R.C. § 2923.24(A).
The trial court found Mr. Carver guilty of importuning but acquitted him on the remaining charges. Mr. Carver was sentenced to a five-year term of community-control sanctions.
Analysis
In the remaining assignment of error, Mr. Carver claims that his conviction for importuning was against the weight of the evidence because he “planned on engaging in purely innocent behavior. It was the officers who insisted on escalating things, insinuating that ‘[Isabella]’ wanted to engage in sexual activity, and that if Mr. Mr. Carver was uninterested in sex, then ‘she’ was uninterested in him.”.
This theme was central to Mr. Carver’s trial strategy. According to Mr. Carver, because the trial court acquitted Mr. Carver of unlawful sexual conduct with a minor, claimed to have been based on the entrapment defense, that should have applied to the importuning as well. As Mr. Carver concedes, this argument falls under the framework of a weight- of-the-evidence standard of review.
Mr. Carver was convicted of importuning under R.C. 2907.07(D)(2), which provides as relevant to this case: “No person shall solicit another by means of a telecommunications device … to engage in sexual activity with the offender when the offender is eighteen years of age or older” and “the other person is a law enforcement officer posing as [a 15-year-old person], the offender believes that the other person is [15 years old] or is reckless in that regard, and the offender is four or more years older than” the age of the portrayed person. It is undisputed that the elements have been satisfied in this case.
The sole question advanced is whether the trial court’s rejection of the entrapment defense as to the importuning was against the weight of the evidence.
Entrapment and Predisposition
Entrapment is an affirmative defense, established if an offender proves that the criminal design originated “with the officials of the government, and they implant[ed] in the mind of an innocent person the disposition to commit the alleged offense and induce its commission in order to prosecute.” State v. Doran, 5 Ohio St.3d 187 (1983). Ohio relies on a subjective test to establish entrapment. Id. That test focuses on the predisposition of the accused to commit the offense, which places emphasis on the offender’s criminal culpability and not the culpability of the police officer. Id. at 192. Entrapment does not occur when “it is shown that the accused was predisposed to commit the offense,” and the government “merely afford[s] opportunities or facilities for the commission of the offense.” Id. Courts generally review the following factors, although nonexhaustive, as relevant to establishing predisposition:
(1) The accused’s previous involvement in criminal activity of the nature charged.
(2) The accused’s ready acquiescence to the inducements offered by the police.
(3) The accused’s expert knowledge in the area of the criminal activity charged.
(4) The accused’s ready access to contraband, and
(5) the accused’s willingness to [become involved] in criminal activity.
Id. No one factor controls over another.
Mr. Carver claims that he was not predisposed to solicit a minor to engage in sexual activity because the undisputed trial evidence demonstrated his general interest in older females and because his crime was induced by the law enforcement officers, focusing on the trial court’s stated reliance on the officers’ supposed overreach. According to the trial court, the law enforcement officers “really went after” Mr. Carver, “they wouldn’t let up.” Mr. Carver’s appellate arguments echo that theme. The question of whether Mr. Carver was predisposed to solicit a minor for the purposes of engaging in sexual activity does not hinge on the officers’ supposed overreach. Doran at paragraph one of the syllabus. Focusing on the law enforcement officers’ conduct in resolving the entrapment question would be legally erroneous.
Accordingly, the sole question is whether the weight of the evidence demonstrates that Mr. Carver was predisposed to telephonically solicit a 15-year-old minor to engage in sexual activity. The burden of production and the burden of proof with respect to the affirmative defense, proof by a preponderance of the evidence, is on Mr. Carver. O.R.C. § 2901.05(A) – which identifies the Burden of Proof.
In this case, Mr. Carver was the first to broach the topic of the criminal ramifications of his intended relationship with “Isabella” and he did so immediately after discussing “Isabella’s” age. After thirty minutes of exchanging mostly benign text messages, Mr. Carver indicated that he would drive to a park near “Isabella’s” home. To that “Isabella” asked “what are we going to do?” Mr. Carver responded that “well [sic] figure it out I wanna hear your voice first.” Mr. Carver asked “Isabella” to call him, and it was immediately in that call that Mr. Carver discussed trying to conceal his arrival from “Isabella’s” neighbors and the police because he did not want to go to jail. In the interview conducted by the arresting police officers, Mr. Carver conceded the legal difference between his holding a minor’s hand and seeking to engage in sexual activity. Thus, Mr. Carver’s statements hardly lend themselves to an innocent motive. The officers’ operation offered nothing more than an opportunity to commit the sex offense, but the criminal seed was already present within Mr. Carver.
At no time during the conversation did Mr. Carver ever announce his reluctance to engage in the sex offense. Instead, each time “Isabella” asked of Mr. Carver’s intentions, he refused to divulge the “explicit details” of his intent until he saw her in person to confirm she was real. He repeatedly articulated his concern about a potential meeting with “Isabella” being a scam, and Mr. Carver was looking for proof that “Isabella” existed or that police officers would not be involved.
In other words, Mr. Carver’s reluctance, if any, was motivated by avoiding arrest for what he perceived to be unlawful conduct — if Mr. Carver intended a nonsexual relationship with the minor, there was no need for Mr. Carver to fear being arrested as Mr. Carver tacitly conceded in his interview with arresting officers.
Holding
Since the issue in this appeal is Mr. Carver’s predisposition to telephonically solicit a minor to engage in sexual activity, we cannot conclude that his conviction amounted to a manifest miscarriage of justice. Although the law enforcement officers presented Mr. Carver the opportunity to commit the sex offense, the evidence in this case demonstrates that Mr. Carver was predisposed to commit the crime when the opportunity presented itself. Mr. Carver has not demonstrated that his conviction was procured through entrapment, and the conviction for importuning is not against the weight of the evidence.
We affirm the conviction.
Information for this article was obtained from State v. Carver, 2022 – Ohio – 3238.
This case was issued by the Eighth District Appellate Court and is only binding in Cuyahoga County, Ohio.
Lessons Learned:
- Entrapment is an affirmative defense, which means that the defendant will admit that his behavior occurred. However, the criminal behavior originated with law enforcement, not the defendant. In this case Mr. Carver made a feeble attempt to claim that his statements that he was a “big guy”, “had a lot of muscle”, he was a “stallion” and would bring a “Magnum” condom, were all made with no intention of a sexual encounter. The doctrine of Entrapment in Ohio was established by the Supreme Court of Ohio in 1983, when it held; “with the officials of the government, and they implant[ed] in the mind of an innocent person the disposition to commit the alleged offense and induce its commission in order to prosecute.” State v. Doran, 5 Ohio St.3d 187 (1983). Here, Mr. Carver’s statement to the undercover officer clearly indicated that the criminal behavior originated with him and not the government.
- This court also reviewed whether Mr. Carver was predisposed to commit the crime of Importuning. State v. Doran, 5 Ohio St.3d 187 (1983) established a five-part test to apply to determine if the defendant was predisposed to commit the crime:
(1) The accused’s previous involvement in criminal activity of the nature charged.
(2) The accused’s ready acquiescence to the inducements offered by the police.
(3) The accused’s expert knowledge in the area of the criminal activity charged.
(4) The accused’s ready access to contraband, and
(5) The accused’s willingness to [become involved] in criminal activity.
The Doran court emphasized that “No one factor controls over another.”.
Because Mr. Carver told the undercover officer he was a “big guy”, “had a lot of muscle”, he was a “stallion”, would bring a “Magnum” condom AND traveled to the agreed upon location to meet the fifteen-year-old, the trial court judge and the Eighth District Appellate Court reasonably concluded that Mr. Carver was predisposed to commit the felony of Importuning.
- Entrapment is rarely used by defendants because it requires the person to admit to the acts and courts rarely determine that law enforcement entrapped a suspect into the criminal behavior. Most especially, because the suspect/defendant had completed many other actions that support he – himself, was predisposed to criminal behavior.
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