[Cite as State v. Cobia, 2015-Ohio-331.]
IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO
STATE OF OHIO, : APPEAL NO. C-140058
TRIAL NO. B-1304778
Plaintiff-Appellee, :
vs. : O P I N I O N.
RAY COBIA, :
Defendant-Appellant. :
Criminal Appeal From: Hamilton County Court of Common Pleas
Judgment Appealed From Is: Reversed, and Appellant Discharged in Part and Cause
Remanded in Part
Date of Judgment Entry on Appeal: January 30, 2015
Joseph T. Deters, Hamilton County Prosecuting Attorney, and Paula E. Adams,
Assistant Prosecuting Attorney, for Plaintiff-Appellee,
Rubenstein & Thurman, L.P.A., and Scott A. Rubenstein, for Defendant-Appellant.
Please note: this case has been removed from the accelerated calendar.
OHIO FIRST DISTRICT COURT OF APPEALS
DEWINE, Judge.
{¶1} Ray Cobia was convicted of sexual battery, impersonating a police officer
and child enticement. The convictions arose from a sexual encounter with a 17-year-old
woman that he had met on a chat line. Rather than pay the teenager for sex as he had
indicated to her he would on the phone, Mr. Cobia falsely told her he was a police officer,
and, under the state’s theory, thereby coerced her into having sex with him.
{¶2} There are two primary issues that are dispositive of this appeal. The first
involves the child-enticement statute. While this appeal was pending, the Ohio Supreme
Court found the statute unconstitutional. As a result, that conviction must be reversed.
The second issue involves the admission of “other acts” evidence. The trial court allowed
evidence of a 2004 incident where Mr. Cobia had coerced a woman into having sex with
him by saying that he was a police officer. We find that such evidence was
impermissible other-acts evidence under Evid.R. 404(B), and as a result, are compelled
to reverse the other convictions as well.
I. Two Victims Testify at Trial
{¶3} Asia Anderson testified that she met Ray Cobia in July 2013, on a chat
line typically used by individuals wishing to exchange sex for money. The two reached
an understanding about the price, and Mr. Cobia came to Ms. Anderson’s apartment.
The apartment was divided in half with separate entrances. During the day in question,
Ms. Anderson was on her side of the apartment, and her mother, five-year-old brother
and one-year-old son were on the other side.
{¶4} When Mr. Cobia arrived, Ms. Anderson tried to increase the price that
had been discussed on the phone. According to Ms. Anderson’s trial testimony, Mr.
Cobia became “cocky,” “arrogant,” and “rude.” Unwilling to accept the $50 offered by
Mr. Cobia, she changed her mind about having sex with him. At that point, Mr. Cobia
2
OHIO FIRST DISTRICT COURT OF APPEALS
said it was too late, he was already there. By her account at trial, he told her he was a
police officer, flashed something that looked like a badge at her, and made a gesture
whereby “he made his hand into a gun,” which caused Ms. Anderson to believe that he
had a gun in his car. Ms. Anderson testified that she decided to comply with Mr. Cobia’s
sexual demands because of concern for her family on the other side of the apartment.
{¶5} Ms. Anderson performed oral sex on Mr. Cobia and then the two
attempted vaginal sex. The encounter culminated with Mr. Cobia ejaculating on a towel.
Mr. Cobia left without paying.
{¶6} Within minutes of his departure, Ms. Anderson telephoned Mr. Cobia “to
ask him why that had to happen that way?” According to her trial testimony, Mr. Cobia
said that he was a District 4 police officer and that she was going to be arrested for
prostitution. At this point, Ms. Anderson says she “got really nervous” and called 911 to
report that she had been raped.
{¶7} At trial, defense counsel pointed out numerous inconsistencies in the
stories that Ms. Anderson told prior to trial and her trial testimony. After the incident,
Ms. Anderson called 911 and reported that Mr. Cobia had come to her apartment to
check her thermostat and had told her, “If you don’t have sex with me you are going to
jail.” She admitted at trial that this was not true. Defense counsel also pointed out that
she had told the nurse at the hospital that she had been threatened with a gun and that
Mr. Cobia had told her that he was going to come back and hurt her family. She
admitted at trial that Mr. Cobia had not said these things, but maintained that she did
feel threatened by him. She also told investigators that Mr. Cobia had telephoned her
after the encounter but admitted at trial she was the one who placed the call.
{¶8} Ms. Anderson was not the only one who testified at trial about an
unwanted sexual encounter with Mr. Cobia. The very first witness called by the state
3
OHIO FIRST DISTRICT COURT OF APPEALS
was a woman who was assaulted in a similar manner by Mr. Cobia in 2004. She testified
that she had accepted Mr. Cobia’s offer of a ride from a neighborhood bus stop to her
transfer stop in downtown Cincinnati. Mr. Cobia told her that he was married and was
a minister. As they drove downtown, he turned their conversation from his family life to
whether she would accept $1,000 to perform various sexual acts. Hoping to put him off,
the victim challenged his ability to come up with that amount of money, causing him to
briefly detour from the direct route downtown in an ultimately fruitless search for an
ATM. When they finally arrived downtown, Mr. Cobia told the victim that he was a
probation officer, “read [her her] rights,” and threatened her with arrest for prostitution,
unless she agreed to have sex with him. He drove to a nearby park, where he raped her,
and then reneged on his promise to let her go. The victim finally managed to escape by
jumping from the car. She told the jury that after being arrested, Mr. Cobia had pled
guilty to rape and impersonating a police officer. On cross examination, defense counsel
suggested that the rape charge might have been reduced to sexual battery as part of a
plea deal.
II. Pleas and a Guilty Verdict
{¶9} For his 2013 acts, Mr. Cobia was indicted for one count of impersonating
a police officer, two counts of rape, two counts of sexual battery, and two counts of child
enticement. Mr. Cobia entered guilty pleas to the two counts of child enticement in
exchange for an agreed sentence of one year. He proceeded to trial on the remaining
counts. The jury found him guilty of impersonating a police officer and one count of
sexual battery, but was unable to reach a verdict on the remaining counts.
{¶10} On appeal, he presents five assignments of error. He contends that the
trial court erred in admitting other-acts evidence and in failing to make the required
sentencing findings and calculate his jail-time credit. And he challenges his trial
4
OHIO FIRST DISTRICT COURT OF APPEALS
counsel’s effectiveness, his convictions under the constitutionally infirm child-
enticement statute, and the weight and sufficiency of the evidence to support his
convictions.
III. Analysis
{¶11} We discharge Mr. Cobia on his child-enticement convictions, because the
child-enticement statute, R.C. 2905.05(A), is unconstitutional. And we reverse his
convictions for sexual battery and impersonating a peace officer, because the admission
of evidence concerning Mr. Cobia’s prior offenses constituted prejudicial error.
A. The Child-Enticement Statute is Unconstitutionally Broad
{¶12} We address first, and sustain, Mr. Cobia’s second assignment of error,
challenging the constitutionality of his child-enticement convictions. While this appeal
was pending, the Ohio Supreme Court decided State v. Romage, 138 Ohio St.3d 390,
2014-Ohio-783, 7 N.E.3d 1156, holding that “R.C. 2905.05(A) is unconstitutionally
overbroad because it sweeps within its prohibition a significant amount of
constitutionally protected activity.” Id. at syllabus. On the authority of Romage, we
reverse Mr. Cobia’s child-enticement convictions and order that he be discharged on
the offenses. See State v. Rebholz, 1st Dist. Hamilton No. C-130636, 2014-Ohio-
2429, ¶ 3-4.
B. The Admission of Other-Acts Evidence was Prejudicial Error
{¶13} In his first assignment of error, Mr. Cobia contends that the trial court
abused its discretion in admitting testimony concerning his 2004 convictions for
impersonating a peace officer and sexual battery. We sustain the assignment of error
upon our determination that the court abused its discretion in admitting this evidence,
and that Mr. Cobia was prejudiced.
5
OHIO FIRST DISTRICT COURT OF APPEALS
{¶14} Evid.R. 404(B) and R.C. 2945.59 codify the common law “principle that
proof that the accused committed a crime other than the one for which he is on trial is
not admissible when its sole purpose is to show the accused’s propensity or inclination
to commit crime.” State v. Curry, 43 Ohio St.2d 66, 68, 330 N.E.2d 720 (1975).
Thus, in a criminal trial, evidence of other crimes, wrongs, or acts is not admissible
for the purpose of proving the accused’s character to show that he acted in
conformity with that character in committing the charged offense. But other-acts
evidence may be admitted if it is relevant and offered for another purpose, such as
proof of motive, opportunity, intent, preparation, knowledge, identity, the absence of
mistake or accident on the defendant’s part, or his scheme, plan, or system in doing
the act in question, Evid.R. 404(B), R.C. 2945.59; and if the probative value of the
other-acts evidence is not substantially outweighed by the danger of unfair prejudice,
Evid.R. 403. See State v. Kirkland, 140 Ohio St.3d 73, 2014-Ohio-1966, 15 N.E.3d
818, ¶ 68, citing State v. Williams, 134 Ohio St.3d 521, 2012-Ohio-5695, 983 N.E.2d
1278, ¶ 20.
{¶15} Evid.R. 404(B) and R.C. 2945.59 must be strictly construed against
admissibility. State v. Lowe, 69 Ohio St.3d 527, 530, 634 N.E.2d 616 (1994). We review
the decision to admit other-acts evidence for an abuse of discretion. State v. Morris, 132
Ohio St.3d 337, 2012-Ohio-2407, 972 N.E.2d 528, syllabus. And we conclude that the
court below abused its discretion.
{¶16} The trial court submitted the charges against Mr. Cobia to the jury with a
limiting instruction that the evidence concerning Mr. Cobia’s 2004 offenses could only
be considered for the purpose of deciding his “intent, purpose, or plan” to commit the
charged offenses and his “identity” as the perpetrator of those offenses, and not for the
6
OHIO FIRST DISTRICT COURT OF APPEALS
purpose of proving his character to show that he had acted in conformity with that
character in committing those offenses.
{¶17} Here, the state argues that evidence concerning Mr. Cobia’s 2004
offenses was admissible other-acts evidence, because it showed a pattern of conduct that
was probative of his identity as the perpetrator of the charged offenses. The two crimes
were so similar, contends the state, that they constitute a “behavioral fingerprint” that
establishes Mr. Cobia’s identity as the perpetrator of the 2013 crimes.
{¶18} Other-acts evidence may be admitted “as evidence of identity ‘either
because the other act is part and parcel of the plan to commit the charged crime or
because the other act is so similar to the crime charged and sufficiently idiosyncratic that
it tends to prove the same person committed both acts.’ ” State v. Kelly, 1st Dist.
Hamilton No. C-140112, 2014-Ohio-5565, quoting State v. Morris, 9th Dist. Medina No.
09CA0022-M, 2012-Ohio-6151, ¶ 18, aff’d, Slip Opinion No. 2014-Ohio-5052. But here,
Mr. Cobia’s identity was not in question. There was no dispute that he was the
individual who had engaged in the sexual encounter with Ms. Anderson that was at issue
at trial. The only questions were whether the act was consensual, and whether he had
impersonated a police officer. Thus, contrary to the state’s theory, the 2004 offense
should not have been admitted to establish identity. See Curry, 43 Ohio St.2d at 73,
330 N.E.2d 720.
{¶19} The state also suggests in passing that the prior incident was
admissible to show Mr. Cobia’s motive. To establish motive, other-acts evidence
“should demonstrate that the accused possesses a specific reason to commit the
crime alleged.” See State v. Johnson, 2d Dist. Montgomery No. 23508, 2011-Ohio-
1133, ¶ 55. Thus, if the state argues that a defendant committed murder to cover up
an earlier crime, evidence of that earlier crime may be admitted to show the motive
7
OHIO FIRST DISTRICT COURT OF APPEALS
behind the murder. But here the evidence of the 2004 crime didn’t suggest a motive
or intent for the alleged crime in 2013–it didn’t show why he might have committed
the crime; it simply showed that he had committed a similar crime in the past. This
is exactly the use of other-acts evidence that Evid.R. 404 is designed to prohibit.
{¶20} The jury was given a limiting instruction, and a jury is presumed to have
followed the court’s instructions. But here, there was no permissible purpose for which
the jury could consider the other-acts evidence. And given the weaknesses in the state’s
case, the submission to the jury of evidence concerning the strikingly similar offenses
committed by Mr. Cobia in 2004 presented a substantial danger that the jury would
base its verdicts not on the evidence of his culpability in the 2013 offenses, but on its
belief that if he did it in 2004, he did it in 2013. This is the inference forbidden by
Evid.R. 403 and 404. The “demonstration of a pattern and the inference that [the
defendant] acted in conformity with the pattern is precisely why other-acts evidence is
generally inadmissible.” See Kelley, 1st Dist. Hamilton No. C-140112, 2014-Ohio-5565,
at ¶ 8. We, therefore, conclude that the trial court abused its discretion in admitting
evidence concerning Mr. Cobia’s 2004 offenses.
{¶21} We further conclude that Mr. Cobia was prejudiced. In determining
whether to grant a new trial based on the erroneous admission of other-acts evidence,
a reviewing court “must consider both the impact of the offending evidence on the
verdict and the strength of the remaining evidence after the tainted evidence is
removed from the record.” State v. Morris, Slip Opinion No. 2014-Ohio-5052,
syllabus; Kelley at ¶ 16.
{¶22} The case against Mr. Cobia depended entirely on the testimony of the
victim, and her credibility was significantly undermined at trial. Therefore, we cannot
say that evidence concerning Mr. Cobia’s 2004 offenses did not impact the jury’s
8
OHIO FIRST DISTRICT COURT OF APPEALS
verdicts, or that without the other-acts evidence, the evidence of his guilt was strong.
Because the court’s error in admitting the other-acts evidence was not harmless beyond
a reasonable doubt, we hold that he was entitled to a new trial. And we sustain the first
assignment of error.
IV. The Remaining Assignments of Error are Moot
{¶23} Our disposition of Mr. Cobia’s first and second assignments of error
renders moot the challenges advanced in the balance of his assignments of error, to his
trial counsel’s effectiveness, the trial court’s sentencing errors, and the weight and
sufficiency of the evidence. We, therefore, do not reach the merits of those assignments
of error.
V. Conclusion
{¶24} Because R.C. 2905.05(A) is unconstitutional, we discharge Mr. Cobia on
his child-enticement convictions. Upon our determination that the admission of other-
acts evidence constituted prejudicial error, we reverse his convictions for sexual battery
and impersonating a peace officer, and remand this case for further proceedings
consistent with the law and this opinion.
Judgment accordingly.
C UNNINGHAM , P.J., and H ENDON , J., concur.
Please note:
The court has recorded its own entry on the date of the release of this opinion.
9