NO IN THE SUPREME COURT OF OHIO APPEAL FROM THE COURT OF APPEALS FOR CUYAHOGA COUNTY, OHIO NO STATE OF OHIO, Plaintiff-Appellee.

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1 [ NO IN THE SUPREME COURT OF OHIO APPEAL FROM THE COURT OF APPEALS FOR CUYAHOGA COUNTY, OHIO NO STATE OF OHIO, Plaintiff-Appellee -vs- JAMES MARQUAND, Defendant-Appellant MEMORANDIJM IN RESPONSE TO JURISI7ICTION' Counsel for Plaintiff-Appellee TIMOTHY J. McGINTY Cuyahoga County Prosecutor Counsel for Defendant-Appellant DANIEL T. VAN ( ).A.ssi stant Prosecuting Attorney The Justice Center 1200 Ontario Street Cleveland, Ohio (216) CULLEN SWEENEY 310 Lakeside Avenue, 2d Floro f.. m A t^^^^z 0, i ^ t ^^^^^ ^f t,'^l^aa T / LE^". p ^ i } ^ ( > ^ ts 3 Y,3 E,f ^# 3IUP ^f^^^g^^ kcgs{lt?y^ n..#ii^,..^ f '.S f 1:'c.f

2 TABLE OF CONTENTS WHY THIS FELONY CASE DOES NOT INVOLVE A SUBSTANTIAL CONSTITUTIONAL QUESTION OR AN ISSUE OF GREAT PUBLIC OR GENERAL INTEREST...1 STATEMEI^TT OF THE CASE AND FACTS LAW AND ARGUMENT PROPOSITION OF LAW I' : ,...6 ATTEMPTED IMPORTUNING IN VIOLATION OF R.C (A), IS A LESSER INCLUDED OFFENSE OF ATTEMPTED STATUTORY RAPE IN VIOLATION OF R.C (A)(1)(b) AND R.C PROPOSITION OF LAW 11: ,......,...6 ATTEMPTED IMPORTUNING, IN VIOLATION OF R.C (B)(1), IS A LESSER INCLtJDED OFFENTSE OF ATTEMPTED UNLAWFUL SEXUAI, CONDUCT WITH A MINOR IN VIOLATION OF R.C (A) AND (B)(3) AND R.C PROPOSITION OF LAW III:...9 IN DETERMINING WHETHER TO INSTRUCT A JURY ON A LESSER INCLUDED OFFENSE, THE COURT MUST VIEW THE EVIDENCE IN A LIGHT MOST FAVORABLE TO THE DEFENDAIti^T. C ON C LU S I ON : SERV ICE

3 WHY THIS FELONY CASE DOES NOT INVOLVE A SUBSTANTIAL CONSTITUTIONAL QUESTION OR AN ISSUE OF GREAT PUBLIC OR GENERAL INTEREST. James Marquand travelled over 200 miles from Flint, Michigan to Cleveland, Ohio to have sex with whom he believed were a 14 year old and 12 year old girl. I-Ie had made several inquiries, commented about what he would do to the 14 year old and 12 year old girl. and had purchase two thongs for them to wear. Marquand would argue to this Court that a,jury could reasonably find that Marquand was not guilty of attempting to engage in sexual conduct with a child under 13 in violation of R.C (.A)(1)(b) and not guilty of attempting to engaging in sexual conduct with a child over 13 but under 16 in violation of R.C In general, the three step approach to determine whether an offense may be a lesser included offense of the other is (1) the offense is a crime of lesser degree than. the other, (2) the offense of the greater degree cannot be committed without the offense of the lesser degree also being committed and (3) some element of the greater offense is not required to prove the commission of the lesser offense. This portion of the test is the "statutory-elements step," a purely legal question that does not analyze the particular facts of the case. State v, Deanda, 136 Ohio St.3d 18, 2013-Ohio-1722, 989 N.E.2d 986, T15-6. If this prong is met, then courts move into the second tier that requires an analysis of the particular facts of the case. The first and second proposition of law related to Marquand's argument that the Eighth District erred in determining that the first tier was not met. The Eighth District properly determined that attempted rape could be committed without attempted importuning be committed and correctly determined that attempted unlawful sexual conduct with a minor could be committed without attempted importuning be comnutted as well.

4 Marquand also asks this Court to adopt his proposition of law that in determining whether the evidence supports a lesser included instruction, the evidence must be viewed in a light most favorable to the defendant. I3ut this is already law, as well as the law that a lesser-included instruction is not warranted every time some evidence is presented to support the lesser. See State v. Wynn, 2"d Dist. Montgomery App. No , 2014-Ohio-420, T103. However, this rule of law need not be addressed to the extent that this would involve a review of the second prong of the lesser-included offense test, a prong that was not reached due to the Eighth District's resolution that the first prong was not met. In this case however, Marquand engaged in a conversation with an undercover police officer. During one portion of the conversations and exchange of communications: {^( 81 [the undercover officer] and [Marquand] continued to back and forth. [Marquand] asked [the undercover officer], "so you're setting this up for me to play with both of them?" [the undercover officer] responded, "whatever you are interested in. I just need to know." [Marquand] asked [the undercover officer] s if the girls "had ever [done] this before?" [Marquand] further told [the undercover officer] that he would want to give them both "oral pleasure," and have them. "try oral" on him. [Marquand] said that he "would like to try and slowly have sex with the 14-year-old," but said that he would "take it slow" because he was "not out to put them in pain." [Marquand] further stated that he would "maybe work at the 12-year-old and see if it could happen." [Marquand] asked [the undercover officer] if the girls wanted "dick pics," and [the undercover officer] replied, "if you want to, sure." [Marquand] subsequently sent photos of his penis so that the "girls" could see what it looked like. State v. Marquand, 8t1' Dist. Cuyalaoga No , 2014-Ohio-698, % Marquand would subseqtiently travel from Flint, Michigan to the Cleveland area and arrived at a hotel. After he was arrested, Marquand told officers that he expected that the "girls" would perforrn oral sex on each other but the bottom line was sex and that he expected to have sex with the 14-year old but was unsure about 12-year old. Given the facts, it was clear why 2

5 Marquand travelled 200 miles. Attempted imporhzning instructions were not warranted in this case. This case does not call for this Court to consider a substantial constitutional claim nor does it call for this Court to consider an issue of great public or general interest. Nor does error exists within the opinion. Instead, Marquand asks this Court to review the Eighth District's particular determination, under the facts of this case, that a lesser-included offense instruction should have been granted. follows: STATEMENT OF THE CASE AND FACTS The Eighth District summarized the procedural history and the facts presented at trial as J^ 3} In December 2012, Marquand was indicted on five counts: one count of attempted rape in violation of R.C and (A)(1)(b) (with a girl less than 13 years old); one count of attempted unlawful sexual conduct with a minor in violation of R.C and (A) (with a girl between the ages of 13 and 16 years old), with a furthermore clause that he was ten or more years older than the victim; one count of possessing criminal tools in violation of R.C (A); and two counts of attempted kidnapping in violation of R.C and (A)(4). All counts had forfeiture specifications attached to them. The following facts were presented to the jury. { 4} Rick 1vlcGinnis, investigator with the Cuyahoga County Prosecutor's Office and the Ohio Internet Crimes Against Children Task Force, testified that he monitors Craigslist ads in Michigan, Ohio, and Pennsylvania. He searches for personal ads that state that a person is looking for sexual encounters with young people. On the morn'zng of December 12, 2012, he found an ad from Flint, Michigan, posted that day at 2:47 a.m., that was titled "Younger Girls Please For Fun - m4w 28." The ad read: Looking for younger girls that have no experience or not much experience and need practice sucking my cock and want to learn what it's all about;) if this is you please respond! I would love to help you out! I will do whatever you want to make you feel really good! I'm very discreet and you don't have to worry about a thing cause its just for fun(d send me a pic so I know your [sic] real with how old you are, the younger the better;) text me sixthreeone fouroneseven sevenonethree if you don't want to .

6 {i( 5} Investigator McGinnis said that he was drawn to the ad because it did not reference a specific age or age range and because the title contained the word `"young" in it. He also explained that the ad contained references to "young" throughout it, as well as "no experience or not much experience." {^( 6} Investigator McGinnis testified that he assumed an undercover persona of "Cliff Barton," the father of 12-and 14-year-old daughters. Using an undercover address of "dadanddaul l2 agmail.com," he responded to the ad with "what age are you looking for?" He received a reply from "James," who was using an address of James responded, "how's it going. Let's just start off by telling me how old you are@[.]" Investigator McGinnis asked James again what age he was interested in. James responded, "it all depends on the girl. I guess I just need to know the age and a pie, if possible. I'm open to whatever but I just would like to know." Investigator McGinnis replied: "have different ages what [are] your limits?" James responded that he "guessed" he had "no limits." ['(j 7} Investigator McGinnis went on to explain to James that he was the father of two girls ages 12 and 14. James asked to see photos of the girls. Investigator McGinnis sent James two photos of female law enforcement officials that had been digitally altered to make them look younger. Investigator McGinnis told James that "Katie" was the 12-year--old and "Tatiana" was the 14-year-old. James asked for nude photos of the girls, but Investigator McGinnis responded that he would not send nude photos of them. z^, $) Investigator McGinnis and James continued to back and forth. James asked McGinnis, "so you're setting this up for me to play with both of them?" McGinnis responded, "whatever you are interested in. I just need to know." James asked McGinnis if the girls "had ever [done] this before?" James further told McGinnis that h:e would want to give them both "oral pleasure," and have them "try oral" on him. James said that he "would like to try and slowly have sex with the 14-year-old," but said that he would "take it slow" because he was "not out to put them in pain." James further stated that he would "maybe work at the 12- year-old and see if it could happen." James asked McGinnis if the girls wanted "dick pics," and McGinnis replied, "if you want to, sure." James subsequently sent photos of his penis so that the "girls" could see what it looked like. {T 9} Eventually, Investigator McGinnis and James began talking on "Google chat." They discussed where to meet. lnvestigator McGinnis told James that he was in Cleveland. James responded that he lived in Flint, Michigail, but said that he was fine with the encounter occurring in Cleveland. McGinnis told James that he booked a hotel room for Friday, December 14, 2012, at the Holiday Inn Express in Brook Park, Ohio. James asked if the girls would "already be naked" when he got there. McGinnis replied, "whatever you want." James then asked, "well do they have anything sexy to wear?" McGinnis responded, "bring them something lol." James asked what size the girls wore and what their favorite color 4

7 was. James also asked if the 14-year-old had "some breast size yet," and if she "shaved." James then asked if the 12-year-old had breasts yet. James later sent photos to McGinnis of two small thongs that he had bought for the "girls" to wear. {^[ 10) On the morning of December 14, 2012, Investigator McGinnis and James continued to maintain contact. As James was driving to Ohio from Michigan, James informed McGinnis of his location along the way. As James got close to the hotel in Brook Park, Investigator McGinnis testified that officers set up surveillance outside and inside the hotel room where James was supposed to meet the two "girls." James arrived at the hotel around 2:00 p.m. IN'hen James knocked on the hotel room door, he was arrested. {T 11 } Investigator McGinnis and Detective Jamie Bonnette of the Cuyahoga County Sheriff s Office interviewed James (later identified to be Marquand) in the back of a mobile forensic vehicle. At the time of the interview, Marquand was unaware that he had been corresponding with an undercover law enforcement official. The interview was audio and video recorded. Marquand admitted to corresponding with "Cliff Barton." When asked what his understanding was as to what was going to happen at the hotel, Marquand said that he and the "girls" would perform oral sex on each other, but that the "bottom line" was sex. Marquand further told the officers that he was going to try to have sex with the 14-year-old, but that he was unsure about the 12-year-old. {^j 121 Police recovered several items from Marquand when he arrived at the hotel, including the two thongs, an iphone, and a Hewlett Packard laptop, Jeffrey Rice, an investigator for the Cuyahoga County Prosecutor's Office and the Ohio Internet Crimes Against Children Task Force, testified that he examined Marquand's computer and iphone. He discovered that Marquand had set up a profile on a "teen dating" website, with the username "Gbdirtyboy." Investigator Rice found that in December 2012, Marquand had accessed the profile pages of several teenage females on "mylol.net," ranging in age from 13 to 16 years old. Marquand had 31 "friends" on the site, all females ranging in age from 13 to 16 years old. Investigator Rice also found five images of suspected child porilography on Marquand's iphone. Marquand had also searched Google for "dating sites for preteens," "dating sites for year olds," and "dating sites for 16 year olds." {^ 131 Investigator Rice did not find the Craigslist ad on Marquand's computer that Investigator McGinnis had responded to, but he found two other similar Craigslist ads: "Daddy seeks Younger Girl to Spoil" and "Fulfill my Fantasy of a Younger Girl." Investigator Rice also found "titles" of suspected child pornography movies in Marquand's "drive free space," but he did not find the actual movies on Marquand's computer. 5

8 {T, 14} The jury found Marquand guilty of attempted rape with a girl less than 13 years old, attempted unlawful sexual conduct with a minor of a girl between the ages of 13 and 16 years old, and possessing criminal tools. It found him not guilty of the two counts of attempted kidnapping. {T 151 The trial court sentenced Marquand to a total of five years in prison: five years for attempted rape, 18 months for attempted unlawful sexual conduct, and 12 months for possessing criminal tools, all to be served concurrent to one another. The trial. court notified Marquand that he would be subject to a mandatory five years of postrelease control upon his release from prison, and further notified Marquand that he would be classified a Tier III sex offender for the attempted rape and a Tier II sex offender for the attempted unlawful sexual conduct. It is from this judgment that Marquand appeals. State v. Marquand, 8t1i Dist. Cuyahoga No , 2014-Ohio-698, LAW AND ARGUMENT PROPOSITION OF LAW I: ATTEMPTED IMPORTUNING IN VIOLATION OF R.C (A)3 IS A LESSER INCLIJDED OFFENSE OF ATTEMPTED STATUTORY RAPE IN VIOLATION OF R.C (A)(1)(b) AND R.C IN VIOLATION OF SEXUAL CONDUCT WITH A MINOR IN VIOLATION OF R.C (A) AND {B)(3) AND R.C The above two propositions of lanv are addressed together. In State v. Deanda, 136 Ohio St.3d 18, 2013-Ohio-1722, 989 N.E.2d 986, this Court reiterated the background and analysis for lesser included offenses. This Court explained: {T 5} Although the concept of lesser included offenses is easily understood in theory, it can be downright baffling in practice. See Bandy v. State, 102 Ohio St. 384, 386, 131 N.E. 499 (1921). The origin of the lesser-included-offense doctrine rests in the common law. Beck v. Alabama, 447 U.S. 625, 633, 100 S.Ct. 2382, 65 L.Ed.2d 392 (1980), The rule was intended to protect the state from a complete acquittal when the evidence was inadequate to support a conviction on the offense charged but supported a conviction on some lesser, uncharged offense. Keeble v. United States, 412 U.S. 205, 208, 93 S.Ct. 1993, 36 L.Ed.2d 844 (1973). Inherent in the lesser-included-offense doctrine is the defendant's constitutional right to receive notice before trial of all charges against him. Ex parte Bain, 121 U.S. 1, 7 S.Ct. 781, 30 L.Ed. 849 (1887). "It is ancient doctrine of both the common law and of our Constitution that a defendant cannot be held to answer a charge not contained in the indictment brought against him." Schmuck v. United States, 489 6

9 U.S. 705, 717, 109 S.Ct. 1443, 103 L.Ed.2d 734 (1989). The lesser-includedoffense doctrine is codified in Ohio law in R.C and Crim.R. 311, which are substantially similar. R.C provides: The jury may find the defendant not guilty of the offense charged, but guilty of an attempt to commit it if such attempt is an offense at law. When the indictment or information charges an offense, including different degrees, or if other offenses are included within the offense charged, the,jury may fiiid the defendant not guilty of the degree charged but guilty of an inferior degree thereof or lesser included offense. { 6} The question of whether a particular offense should be submitted to the finder of fact as a lesser included offense involves a two-tiered analysis. State v. Evans, 122 Ohio St.3d 381, 2009-Ohio-2974, 911 N.E.2d 889, ^f 13. The first tier, also called the "statutory-elements step," is a purely legal question, wherein we deterinine whether one offense is generally a lesser included offense of the charged offense. State v. KiddeY, 32 Ohio St.3d 279, 281, 513 N.E.2d 311 (1987). The second tier looks to the evidence in a particular case and determines whether "`a jury could reasonably find the defendant not guilty of the charged offense, but could convict the defendant of the lesser included offense.' " Evans at 1, 13, quoting Shaker Hts. V. Mosely, 113 Ohio St.3d 329, 2007-Ohio-2072, 865 N.E.2d 859, ^J 11. Stale u. Deanda, 136 Ohio St.3d 18, 2013-Ohio-1722, 989 N.E.2d 986, 1j5-6 In general the three step approach to determine whether an offense may be a lesser included offense of the other is (1) the offense is a crime of lesser degree than the other, (2) the offense of the greater degree cannot be comniitted without the offense of the lesser degree also being committed and (3) some element of the greater offense is not required to prove the commission of the lesser offense. This portion of the test is the "statutory-elements step," a purely legal question that does not analyze the particular facts of the case. Deanda, 6. Here the Eighth District, correctly determined that a lesser-included instruction was not warranted because it is plausible that attempted rape be committed without attempted importuning be comxnitted as well. With regards to the attempted rape and the attempted importuning: 7

10 i11 43 } We turn now to the third part of the Evans test, i.e., determining whether "the greater offense as statutorily defined cannot be coinmitted without the lesser offense as statutorily defined also being committed." In discussing this part of the analysis, the Ohio Supreme Court explained after Evans that the specific facts of a particular case are "still irrelevant," but courts should "no longer * * * look at the elements in a vacuum." Deandra, 136 Ohio St.3d 18, 2013-Ohio-1722, 989 N.E.2d 986, jj 18. The Supreme Court made clear that "a menu of uzirelated, factspecific hypotheticals" or "implausibles" should not be considered in the analysis. Id.; Evans, 122 Ohio St.3d 381 at 24, 2009-Ohio-2974, 911 N.E.2d 889. "Rather, it is more instructive to consider the charged crime's relationship witla. potential lesser included offenses, and then follow the language of the applicable statutes in order to ensure the defendant's constitutional right to notice." Deandra at T 18. In clarifying the Deem test, the Ohio Supreme Court explained in Evans that test now "requires a comparison of the elements of the respective offenses in the abstract to determine whether one element is the functional equivalent of the other. If so, and if the other parts of the test are met, one offense is a lesser included offense of the other." Evans at 25. { 44} Here, the greater offense of attempted rape can be committed without the lesser offense of attempted importuning also being committed. It is certainly not an "implausible situation" that attempting to engage in sexual conduct with a person under the age of 13 can occur without attempting to "solicit" a person under 13 to engage in sexual conduct (or sexual activity). Despite Marquand's arguments to the contrary, offenders can attempt to engage in sexual conduct with persons under 13 without "soliciting" them to do so (for example, by force). We simply do not agree with Marquand's argument that one "seeking" to have sex with another includes all forpns of sexual conduct (even forceful sexual conduct) because if someone wants sex, that person is necessarily "seeking" sex. But "seeking" to have sex with someone by force (as Marquand argues) is not the equivalent of "soliciting" someone to have sex within the meaning of the importuning statute. See Jain, 3d Dist. Auglaize No , 2010-Ohio-1712, at T, 10 (set forth supra). Marquand, T The Eighth District applied the same analysis to determine that attempted uz-jawful sexual conduct and attempted importuning were not lesser included offenses. T149. 8

11 PROPOSITION OF LAW III: IN DETERIVIINING WHETHER TO INSTRUCT A JURY ON A LESSER INCLUDED OFFENSE, THE COURT MUST VIEW THE EVIDENCE IN A LIGHT MOST FAVORABLE TO THE DEFENDANT. This proposition of law is not reached to the extent that the Eighth District determined that Marquand did not satisfy the first prong of the lesser included test. Even if this prong were reached, he was still not entitled to his requested instruction. The argument that Marquand was not looking to engage in sex with someone who could not consent is of no consequence, since a 12-year old and a 14-year old cannot consent. Marquand's actions included taking pictures of his penis and transmitting them, and purchased two thongs for the "girls" to wear, which Marquand brought with him. Given these actions an acquittal of attempted rape and attempted unlawful sexual conduct with a minor was not warranted. Merely because, a jury could acquit does not mean that an instruction is warranted because in every case it is possible that a jury could acquit of the greater offense. CONCLUSION This Court should not accept review of this case because it does not involve a substantial constitutional question or an issue of great public or general interest. Respectfully submitted, TIMOTHY J. McGINTY CUYAHOGA COUNTY PROSECUTOR -^ ^^ BY: ^^ ^^.^, _ DANIEL T. VAN ( Assistant Prosecuting Attorney 1200 Ontario Street, 8'^' Floor Cleveland, Ohio

12 SERVICE A copy of the foregoing Memorandum in Response has been mailed this 6th day of May, 2014, to Cullen Sweeney, 310 Lakeside Avenue, 2d Floor, Cleveland, Ohio c',a" t'. DANIEL T. VAN ( ) Assistant Prosecuting Attorney 10