State v. Ashbrook, 2005 Ohio 740 (OH 2/22/2005)
| Decision Date | 22 February 2005 |
| Docket Number | Case No. 2004-CA-00109. |
| Citation | 2005 Ohio 740 |
| Parties | State of Ohio, Plaintiff-Appellee, v. Gregory Ashbrook, Defendant-Appellant. |
| Court | Ohio Supreme Court |
Amy Andrews, Stark County Pros., 110 Central Plaza S., 5th Fl. Canton, OH 44702, for Plaintiff-Appellee.
Angela D. Stone, 4884 Dressler Road N.W., Canton, OH 44718, for Defendant-Appellant.
Hon: John F. Boggins, P.J., W. Scott Gwin, J., Julie A. Edwards, J.
{¶1} Defendant-appellant Gregory Ashbrook appeals from his conviction and sentence in the Stark County Court of Common Pleas on one count of attempt to commit rape, a felony of the second degree, in violation of R.C. 2923.02 (A). He further appeals his adjudication as a sexual predator. The plaintiff-appellee is the State of Ohio.
{¶2} The Internet Crimes Against Children Task Force conducted an "on-line crimes" investigation targeting Internet chat rooms. As part of the investigation, Detective Bobby Grizzard, created a profile for a fictional mother with the screen name "Lori 4-Laci". Using this screen name and a fictitious profile, Grizzard entered Internet chat rooms on America Online (AOL). The profile attached to the screen name described "Lori", the purported poster of the messages, as salesperson located in Northeastern Ohio. A personal message accompanied the profile, and stated: The profile was visible to AOL members who clicked on the screen name "Lori 4 Laci."
{¶3} One chat room in which "Lori 4 Laci" was posted is entitled "Take Daughter to the Park." Detective Grizzard received hundreds of responses to this profile and others like it; most were harmless, non-sexual responses from people who wanted to talk about miscellaneous topics. On September 25, 2003, Detective Grizzard was contacted by someone with the screen name "OBFUMAN."
{¶4} The first contact from OBFUMAN asked how old Laci is, and stated he would love to chat. Detective Grizzard replied, "Laci is 12." OBFUMAN responded "nice age; what do you like to do together?" Grizzard replied, "everything." OBFUMAN stated that he would love to meet both mom and daughter, and inquired as to their location in Northeastern Ohio. OBFUMAN stated that his screen name stood for "Old Bald Fat Ugly Man." OBFUMAN asked "What kind of fun do you both like," and Grizzard replied, "Any."
{¶5} Detective Grizzard, posing as "Lori" pressed appellant stating that he asked "Laci's" age, but still had not told her exactly what he was looking for. Appellant responded that he wanted to meet and when would that be possible. He further stated that he wanted to meet for the purposes of "fun and pleasure" with both of them. He stated that he wanted to meet for the purpose of "SREX" [sic]. Appellant used explicit language, stating that he "liked to lick and to fuck." "Lori" replied, "We can do that," and told appellant to make the arrangements. When appellant said he was cautious about hotels, "Lori" suggested the Hampton Inn in Massillon.
{¶6} Conversations between "Lori" and appellant continued after the initial discussion on September 25, 2003. All conversations were between appellant and "Lori;" "Laci" did not converse with appellant on line or in person. Several times appellant asked "Lori" whether she was a law enforcement officer, which Grizzard denied. Appellant also stated that he was not involved in law enforcement. Eventually, photos were exchanged, also at appellant's request. The photo provided for "Lori" was that of an undercover female police officer; the photo of "Laci" was of another undercover police officer as she appeared at age 12.
{¶7} The conversations between appellant and "Lori" were explicit in regard to what sexual conduct appellant expected. "Lori" asked what acts he wanted from "Laci" and appellant responded that she should tell him whatever they were willing to do and he would "respect their limits." Appellant stated that he wanted them both. "Lori" told him that she needed to know what he wanted from "Laci" so that she could prepare her, and stated that "back door is out for [Laci]," meaning anal intercourse. Appellant stated that he understood. The conversation touched upon sex toys, or "gadgets," and the expectation that appellant would use condoms with "Laci" but not with "Lori". Appellant stated that he wanted to make them both smile, and "Lori" responded, "hey, no rough sex with my daughter." Appellant's response was "no, mutual fun and pleasure."
{¶8} A "meeting" was initially arranged for October 20, 2003, but "Lori" contacted appellant to cancel, and told appellant to let "her" know what he was expecting and possibly reschedule. Appellant responded that he wondered about meeting Saturday evening, and suggested the three go to dinner, to get to know each other, and then see what else they would enjoy.
{¶9} On October 28, 2003, "Lori" and appellant discussed the details of a meeting planned for November 1. Appellant stated that they could go to dinner before sex, and "Lori" suggested the Olive Garden Restaurant.
{¶10} Appellant requested another meeting with a fictional mother and daughter, and arrangements were made for a meeting on November 1, 2003 at the Hampton Inn in Massillon. "Lori" and appellant discussed protection, with appellant understanding he was required to use a condom for any intercourse with "Laci" but not with "Lori." The conversation with appellant indicated he was coming to Massillon to have sexual intercourse with "Laci," and that he hoped "Lori" would also participate.
{¶11} Appellant also had two telephone conversations with "Lori" in reality an undercover police officer, Kathy Bickford. The telephone calls were recorded. One conversation took place the day before the planned meeting. During this conversation, appellant again mentioned something to the effect of being respectful of "Lori's" limits. The second conversation occurred on November 1, 2003, the day of the planned meeting at the Hampton Inn, when appellant called "Lori" to let her know he was in Wooster and would soon be in town.
{¶12} Shortly thereafter, appellant arrived at the Hampton Inn for the rendezvous. Detective Grizzard was behind the counter at the registration desk, and watched as appellant requested a room with a king size bed and paid in cash. Appellant then went up to the room, and came back down and went to his van. Appellant was arrested as he entered the van.
{¶13} A subsequent search of appellant's van yielded an overnight kit, a box of condoms, two roses, one pink and one red, and a security lock for the hotel door. These items were in a Wal-Mart bag.
{¶14} Detective Grizzard spoke with appellant shortly after his arrest. He indicated that he came to Massillon to have dinner with "Lori" and "Laci," and that he did not know their last names. He admitted that he had operated through the screen name OBFUMAN, and that he was the only person who had engaged in the conversation with "Lori" as OBFUMAN. Detective Grizzard asked appellant whether he knew how old "Laci" was, and appellant stated that she was 12. Detective Grizzard asked how old "Laci" appeared to be in the photo he had received, and appellant stated "10, 11, or 12." When asked what his intentions were, appellant replied that he did not know whether he would have been able to go through with having sex with "Laci."
{¶15} Appellant filed a motion to suppress virtually all of the evidence the police had obtained, including items seized from appellant's van and the hotel room in a statement to the police, recorded telephone conversations, e-mails, and instant messages between appellant "Lori." A hearing was held, after which the trial court sustained the motion to suppress the items found in the hotel room, but overruled the motion as to the rest of the evidence. Appellant also filed a motion to dismiss in which he argued the criminal charge had no merit because no actual child victim existed and the conversations between "Lori" and appellant were protected speech. The trial court overruled the motion to dismiss.
{¶16} The case proceeded to a trial by jury, and appellant was found guilty as charged. A sentencing hearing was held, and appellant was sentenced to the maximum prison term of eight years and further was labeled a sexual predator. Appellant timely appeals from his conviction and sentence raising the following five assignments of error for our consideration.
{¶17} "I. The appellant's conviction was against the manifest weight of the evidence.
{¶18} "II. The trial court erred in denying appellant's motion to suppress.
{¶19} "III. The trial court erred in denying appellant's motion to dismiss.
{¶20} "IV. The trial court erred in finding that the appellant is a sexual predator.
{¶21}
{¶22} In his first assignment of error appellant maintains that his conviction on one count of attempted rape is against the manifest weight of the evidence. In his third assignment of error appellant maintains that the trial court erred in overruling his motion to dismiss because there was no actual child involved and, further his conversations are protected expressions of Free Speech. Because these two assignments of error are interrelated we shall address them together.
{¶23} The Supreme Court has explained the distinction between claims of sufficiency of the evidence and manifest weight. Sufficiency of the evidence is a question for the trial court to determine whether the State has met its burden to produce evidence on each element of the crime charged, sufficient for the matter to be submitted to the jury.
{¶24} Manifest weight...
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