State v. Carver

[Cite as State v. Carver, 2022-Ohio-3238.]

COURT OF APPEALS OF OHIO

EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA

STATE OF OHIO, :

Plaintiff-Appellee, :
No. 111292
v. :

JOSHUA CARVER, :

Defendant-Appellant. :

JOURNAL ENTRY AND OPINION

JUDGMENT: AFFIRMED
RELEASED AND JOURNALIZED: September 15, 2022

Criminal Appeal from the Cuyahoga County Court of Common Pleas
Case No. CR-19-638748-A

Appearances:

Michael C. O’Malley, Cuyahoga County Prosecuting
Attorney, and Melissa Riley, Assistant Prosecuting
Attorney, for appellee.

Cullen Sweeney, Cuyahoga County Public Defender, and
Michael V. Wilhelm, Assistant Public Defender, for
appellant.
SEAN C. GALLAGHER, A.J.:

Joshua Carver appeals his conviction for importuning, following a

bench trial at which the trial court acquitted Carver of attempted unlawful sexual

contact with a minor and possession of criminal tools. For the following reasons, we

affirm.

This appeal focuses on Carver’s predisposition to commit a sex

offense based on his claim to have been entrapped by police officers posing as a 15-

year-old girl named “Isabella.” 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, Carver agreed to use the text messaging application associated with his

personal phone number. For about 30 minutes, “Isabella” and Carver sporadically

texted back and forth, mostly discussing biographical information and engaging in

idle chitchat, but in those messages “Isabella” told Carver she was 15 years old and

was staying home from school for the day. Upon learning of “Isabella’s” age, Carver

asked: “Do [you] think [you] could handle a big guy like me?” “Isabella” sought an

explanation for that statement. 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.

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 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, 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 Carver about his plans if they met in the nearby park.

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 Carver’s intentions were. 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, 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 Carver had planned for their meetup.

By the fourth phone conversation, all but the first initiated by Carver,

upon learning that “Isabella” was a virgin, Carver told “Isabella” that he would like

to perform a specific sexual act with her if they met at the park near her “house.”

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, 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 Carver to describe his

intended sex acts but that he had no intentions of doing anything other than holding

hands.

Entrapment became Carver’s primary defense to the charges for

unlawful sexual conduct with a minor, in violation of R.C. 2923.02 and 2907.04(A),

importuning, in violation of R.C. 2907.07(D)(2), and possessing criminal tools, in

violation of R.C. 2923.24(A). The trial court found Carver guilty of importuning but

acquitted him on the remaining charges. Carver was sentenced to a five-year term

of community-control sanctions.

In this appeal, Carver advances two assignments of error.1 In the first

to be addressed, Carver claims that the trial court entered inconsistent verdicts

based on the acquittal of the unlawful sexual conduct, which according to Carver

proves the trier of fact believed that Carver was entrapped as legally defined. In the

second, he claims his convictions are against the weight of the evidence because

Carver proved the elements of entrapment.

The first argument is without merit. Carver asks this panel to adopt

United States v. Maybury, 274 F.2d 899, 903 (2d Cir.1960), in which it was

concluded that a judge may not render inconsistent verdicts following a bench trial

1 The assignments of error are reordered for the sake of discussion.
by drawing a distinction from the well-settled law that inconsistent jury verdicts are

constitutionally permissible. This district has declined to adopt Maybury. State v.

Burke, 8th Dist. Cuyahoga No. 54047, 1988 Ohio App. LEXIS 2442, 6 (June 16,

1988); see also State v. Frierson, 2018-Ohio-391, 105 N.E.3d 583, ¶ 47 (8th Dist.),

citing State v. Williams, 8th Dist. Cuyahoga No. 87218, 2006-Ohio-5325, ¶ 20-21,

State v. Smith, 8th Dist. Cuyahoga No. 81344, 2003-Ohio-3215, ¶ 31, State v. Lynch,

8th Dist. Cuyahoga No. 53633, 1989 Ohio App. LEXIS 1092 (Mar. 30, 1989), and

Brecksville v. Malone, 8th Dist. Cuyahoga Nos. 75466 and 75651, 2000 Ohio App.

LEXIS 587, 4-5 (Feb. 17, 2000); State v. Kotomski, 11th Dist. Ashtabula No. 2015-

A-0047, 2016-Ohio-4731, ¶ 48, citing Smith and State v. Henderson, 1st Dist.

Hamilton No. C-130541, 2014-Ohio-3829, ¶ 25. Carver nevertheless asks this court

to reconsider the rejection of Maybury, but as an intermediate panel, we are bound

by the prior decisions and those of our superior courts. See Harris v. Rivera, 454

U.S. 339, 102 S.Ct. 460, 70 L.Ed.2d 530 (1981) (inconsistent verdicts upon multiple

counts following a bench trial do not raise any constitutional concerns); accord

State v. Gardner, 118 Ohio St.3d 420, 2008-Ohio-2787, 889 N.E.2d 995, ¶ 81

(following Maybury).

In the remaining assignment of error, 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. Carver was uninterested in sex, then ‘she’ was uninterested in him.”
This theme was central to Carver’s trial strategy. According to Carver, because the

trial court acquitted 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 Carver concedes, this argument falls under the framework of a weight-

of-the-evidence standard of review.

“To evaluate a claim that a jury verdict is against the manifest weight

of the evidence, we review the entire record, weigh the evidence and all reasonable

inferences, consider the credibility of witnesses, and determine whether in resolving

conflicts in the evidence, the jury clearly lost its way and created such a manifest

miscarriage of justice that we must reverse the conviction and order a new trial.”

State v. Wilks, 154 Ohio St.3d 359, 2018-Ohio-1562, 114 N.E.3d 1092, ¶ 168, citing

State v. Thompkins, 78 Ohio St.3d 380, 387, 678 N.E.2d 541 (1997). “‘The

discretionary power to grant a new trial should be exercised only in the exceptional

case in which the evidence weighs heavily against the conviction.’” Thompkins at

387, quoting State v. Martin, 20 Ohio App.3d 172, 175, 485 N.E.2d 717 (1st

Dist.1983).

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 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, 449 N.E.2d 1295 (1983), paragraph one of the syllabus. 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.
 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” Carver, “they wouldn’t let up.” Tr. 208:1-4. Carver’s appellate arguments echo

that theme. The question of whether 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 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 Carver. R.C. 2901.05(A).

It is true that Carver does not have a history of sexual deviancy.

Nonetheless, “a first-time offender can be predisposed to commit a crime just as

surely as a repeat offender can.” United States v. Martin, 780 Fed.Appx. 248, 252

(6th Cir.2019), citing United States v. Gordon, 844 F.2d 1397, 1406 (9th Cir.1988)

(“[O]ne may be predisposed to commit his first crime as much, if not more than, a

chronic offender.”). Moreover, “the government does not entrap a defendant by
simply giving him the opportunity to commit a crime or initially suggesting it.”

(Emphasis added.) Id., citing United States v. Kussmaul, 987 F.2d 345, 349 (6th

Cir.1993). The pertinent question is “whether the government overcame the will of

a reluctant, otherwise law-abiding person.” Id., citing Jacobson v. United States,

503 U.S. 540, 553-554, 112 S.Ct. 1535, 118 L.Ed.2d 174 (1992), and United States v.

Barger, 931 F.2d 359, 367 (6th Cir.1991).

In this case, 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 30 minutes of exchanging mostly benign text

messages, Carver indicated that he would drive to a park near “Isabella’s” home. To

that “Isabella” asked “what are we going to do?” Carver responded that “well [sic]

figure it out I wanna hear your voice first.” Carver asked “Isabella” to call him, and

it was immediately in that call that 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, Carver conceded the legal

difference between his holding a minor’s hand and seeking to engage in sexual

activity. Thus, 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 Carver.

This is further demonstrated by the fact that Carver’s reluctance to

answer “Isabella’s” questions with respect to his intentions was objectively

motivated by self-preservation, not a reluctance to engage in the underlying criminal
activity. United States v. McLean, 702 Fed.Appx. 81, 85 (3d Cir.2017), fn. 9

(generally, the defendant’s failure to express reluctance to commit the crime before

being induced by the government agent into committing a crime obviates the ability

to assert entrapment as a defense at trial); see also United States v. Khan, 6th Cir.

No. 20-1179/1223, 2021 U.S. App. LEXIS 26750, 14 (Sept. 3, 2021). At no time

during the conversation did Carver ever announce his reluctance to engage in the

sex offense. Instead, each time “Isabella” asked of 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 Carver was looking for proof that “Isabella” existed or

that police officers would not be involved. See, e.g., United States v. Hood, 811

Fed.Appx. 291, 298 (6th Cir.2020) (because it was less than an hour from the agent

suggesting intimacy between the minor and the defendant and because the

defendant continually asked the purported minor if she was “setting him up,” the

evidence demonstrated that the defendant was not reluctantly engaging in the

sexual discussion with the purported minor for the purposes of entrapment).

In other words, Carver’s reluctance, if any, was motivated by avoiding

arrest for what he perceived to be unlawful conduct — if Carver intended a nonsexual

relationship with the minor, there was no need for Carver to fear being arrested as

Carver tacitly conceded in his interview with arresting officers. See United States v.

Unrein, 688 Fed.Appx. 602, 609 (11th Cir.2017), citing United States v. Alston, 895

F.2d 1362, 1368-1369 (11th Cir.1990) (“affirming denial of entrapment instruction
where the defendant readily pursued the crime, ‘never once expressed even a

distaste’ for criminal activity, and the undercover agent did not pressure him into

criminal activity”), and United States v. Ventura, 936 F.2d 1228, 1233 (11th

Cir.1991) (“affirming denial of entrapment defense where defendant had ‘indicated

no reluctance whatsoever’ to engage in criminal act and agent did not coerce him”).

Since the issue in this appeal is 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 Carver the opportunity to commit the sex offense,

the evidence in this case demonstrates that Carver was predisposed to commit the

crime when the opportunity presented itself. 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.

It is ordered that appellee recover from appellant costs herein taxed.

The court finds there were reasonable grounds for this appeal.

It is ordered that a special mandate issue out of this court directing the

common pleas court to carry this judgment into execution. Case remanded to the

trial court for execution of sentence.
 A certified copy of this entry shall constitute the mandate pursuant to Rule 27

of the Rules of Appellate Procedure.

____________________________________
SEAN C. GALLAGHER, ADMINISTRATIVE JUDGE

CORNELIUS J. O’SULLIVAN, JR., J., and
MARY J. BOYLE, J., CONCUR