IREDUVED DDD. JUN 18?01i2 JUN CLERK OF COURT SUPREME COURT OF OHIO. CLERK OF COURT I SUPREIVIE_COl7RT OF ONIO IN THE SUPREME COURT OF OHIO

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1 IN THE SUPREME COURT OF OHIO State of Ohio Appellant S. Ct. Case io. C.A. Case No. E C.P. Case No CR-292 V. Jeffery L. McFarland Appellee APPEAL FROM THE SIXTH APPELLATE DISTRICT ERIE COUNTY, OHIO MEMORANDUM IN SUPPORT OF JURISDICTION Counsel for Appellant: KEVIN J. BAXTER ( ) ERIE COUNTY PROSECUTOR Mary Ann Barylski ( ) Assistant Prosecutor 247 Columbus Avenue Sandusky, Ohio (419) FAX: (419) IREDUVED JUN CLERK OF COURT SUPREME COURT OF OHIO Counsel for Appellee: Jeffrey J. Whitacre ( ) Erie County Public Defender 220 Columbus Avenue Sandusky, Ohio (419) FAX: (419) DDD JUN 18?01i2 CLERK OF COURT I SUPREIVIE_COl7RT OF ONIO

2 TABLE OF CONTENTS Paee Why Leave to Appeal Should be Granted...1 Statement of the Case...2 Statement of the Facts...3 ARGUMENT: PROPOSITION OF LAW NO. ONE: UNDER THE ANALYSIS SET FORTH IN STATE v. JOHNSON128 Ohio St.3d 153, 2010-Ohio-6314, THE OFFENSES OF ATTEMPTED DISSEMINATING MATTER HARMFUL TO A JUVENILE AND ATTEMPTED IMPORTUNING COMMITTED IN LUCAS COUNTY WERE NOT ALLIED OFFENSES BASED ON THE SAME CONDUCT AS THE OFFENSES COMMITTED IN ERIE COUNTY OF PANDERING OBSCENITY INVOLVING A MINOR AND PANDERING SEXUALLY ORIENTED MATTER INVOLVING A MINOR WHEN THE OFFENSES INVOLVED SEPARATE VICTIMS. THEREFORE, THE DOUBLE JEOPARDY CLAUSE DOES NOT ATTACH....:...:...:...:...5 PROPOSITION OF LAW NO. TWO: OHIO REV. CODE ANN (H) PROVIDES THAT, WHEN AN OFFENDER AS.PART OF A COURSE OF CRIMINAL CONDUCT, COMMITS OFFENSES IN DIFFERENT JURISDICTIONS. HE MAY BE TRIED FOR ALL OF THOSE OFFENSES IN ANY JURISDICTION IN WHICH ONE OF THE OFFENSES!^!+l+iTDUTT Vl^l^L'1\^JL`IJ Vl.liV1U\L'L. mucntiic lvn_tllriyf_r TN TiTF_ T.ANf TiAC F. 1111'11^a^ av OF THE STATUTORY PROVISO THAT1MANDATES THATvALL OFFENSES CONSTITUTING THE COURSE OF CRIMINAL CONDUCT MUST BE TRIED ONLY IN A SINGLE JURISDICTION. State v. Barnett ( 1998), 124 Ohio App.3d 746, headnote ***Authorities Cited in Support of Propositions of Law*** State v. Johnson, 128 Ohio St.3d 153, 2010-Ohio , 6, 7, 14 State v. Urvan (1982), 4 Ohio App.3d , 14, 15 Ohio Revised Code Ann , 7 Ohio Revised Code Ann , 8, 10 i

3 Ohio Revised Code Ann Ohio Revised Code Ann , 9, 10 State v. Cooner, 2010 Ohio App. LEXIS 1643, 2010-Ohio-1983 (Ohio App. 8 Dist.), affirmed on other grounds by In re Cases held for the Decision in State v. Hod e, 128 Ohio St.3d 234, 2011-Ohio State v. Hendricks, 2009 Ohio App. LEXIS 4691, 2009-Ohio-5556 (Ohio App. 8 Dist.)...9 State v. Stone, 2005 Ohio App. LEXIS 4720, 2005-Ohio-5206 (Ohio App. 1 Dist.)...9 State v. McCartney, 2004 Ohio App. LEXIS 4325, 2004-Ohio-4781 (Ohio App. 12 Dist.)...9, 10 State v. Yodice, 2002 Ohio App. LEXIS 7163, 2002-Ohio-7344 (Ohio App. 11 Dist:)...:...9 State v. Eal, 2012 Ohio App. LEXIS 1235, 2012-Ohio-1373 (Ohio App. 10 Dist.)...9, 10 O'Connor v. Erwin, (S.D.Ohio), Case No. C , 2008 U.S. Dist. LEXIS , 11 State v. Edwards, 2011 Ohio App. LEXIS 69, Inii nt,;,. oc nt,;, e,.,, un;^r^..1_1 1_2_ 1 3 LV11-V111V-JJ `V111V [Yllll.... _. - Ohio Rules of Criminal Procedure, Rule Rashad v. Burt (1997), 108 F.2d , 14 State v. Mitchell, 2011 Ohio App. LEXIS 827, Ohio-973 (Ohio App. 6 Dist.)...14 State v. McFarland, 2012 Ohio App. LEXIS 1752, 2012-Ohio-1991 (Ohio App. 6 Dist.)...14 State v. Barnett ( 1998), 124 Ohio App.3d State v. Amato (1989), 55 Ohio App.3d ii

4 State v. Gonzales, Case No. 92WD034, 1993 Ohio App LEXIS 1155 (Ohio App. 6 Dist., Feb. 26, 1993)...15 Conclusion...15 Certification...16 APPENDIX Judgment Entry iii

5 WHY LEAVE TO APPEAL SHOULD BE GRANTED The Sixth District Court of Appeals improperly affirmed the decision of the trial court in State v. McFarland, 2012 Ohio App. LEXIS 1752, 2012-Ohio-1991 (Ohio App. 6 Dist.). The court erroneously relied on the case of State v. Urvan (1982), 4 Ohio App.3d 151, which held that "the state may not, `either by design or inadvertence, separate charges originating in one "course of criminal conduct" and pursue them separately in the courts of more than one county even though the venue could be laid in any of the counties under R.C (H).' State v. Urvan, 4 Ohio App.3d (8th Dist.1982), limited by State v. Mutter, 14 Ohio App.3d 356, (8th Dist.1983)." McFarland, 2012-Ohio-1991 at 5-6, 10. In its decision, the Sixth District Court of Appeals failed to perform any analysis of the offenses to determine whether the offenses were allied offenses under the analysis of State v. Johnson, 128 Ohio St.3d 153, 2010-Ohio The reviewing court just adopted the trial court's decision. By the failure to apply Johnson, the court failed to recognize the existence of separate victims involved in the case. It has been recognized that multiple convictions are allowed for each individual computer image under O.R.C , "as a separate animus exists each time a separate image or file is downloaded and saved." (Emphasis added) State v. Cooper, 2010 Ohio App. LEXIS 1643, 2010-Ohio-1983, *13, 34 (Ohio App. 8 Dist.), affirmed on other grounds by In re Cases held for the Decision in State v. Hodge, 128 Ohio St.3d 234, 2011-Ohio-228, quoting State v. Hendricks, 2009 Ohio App. LEXIS 4691, 2009-Ohio-5556 (Ohio App. 8 Dist.). Consequently, the trial court's analysis and decision under Johnson, expands the analysis of Johnson. This expansion not only affects this case, but can be applied to other offenses where multiple victims are involved in the crime committed -- Felonious Assault, 1

6 Aggravated Vehicular Homicide, Murder etc. Appellant avers that Johnson was not promulgated to overturn existing president where multiple victims are involved. When multiple victims are involved and the crimes are committed in separate counties, the case of Urvan does not control. Pursuant to existing case law, each county may prosecute the offenses which were committed in their respective jurisdictions as long as double jeopardy does not attach. State v. Barnett (1998), 124 Ohio App.3d 746, headnote 1. Therefore, appellant's jurisdictional memorandum demonstrates that a substantial constitutional question has been raised and that this case is one of public or great general interest. STATEMENT OF THE CASE On or about August 11, 2010, appellee was indicted by the Erie County Grand Jury for six counts of Pandering Obscenity Involving a Minor, a violation of (A)(5) of the Ohio Revised Code (hereinafter "O.R.C."), and six counts of Pandering Sexually Oriented Matter Involving a Minor, a violation of O.R.C (A)(5). On November 12, 2010, appellee filed a motion to dismiss the indictment on the basis of Double Jeopardy. Appellant filed its response on December 1, Without holding a hearing, the trial court granted appellee's motion to dismiss by Opinion and Judgment Entry filed and journalized April 15, Appellant filed a Motion for Relief from Judgment Pursuant to Ohio Rules of Civil Procedure Rule 60(B) with the trial court on April 20, Appellant filed a notice of appeal with the Sixth District Court of Appeals for Erie County, Ohio on May 3, 2011, on the judgment entry journalized April 15, On May 10, 2011, the trial court granted appellant's motion for relief from judgment and vacated the judgment entry filed and journalized April 15,

7 On May 11, 2011, appellant filed a motion with the Sixth District Court of Appeals for Erie County, Ohio, to dismiss the appeal. Appellant's motion was granted by Decision and Judgment Entry journalized May 17, 2011, in Case No. E A hearing on appellee's motion to dismiss was held on June 8, The trial court granted appellee's motion by Opinion and Judgment Entry joumalized June 22, Appellant filed a notice of appeal with the Sixth District Court of Appeals for Erie County, Ohio, on June 27, 2011, on the judgment entry joumalized June 22, The appellate court affirmed the decision of the trial court on May 4, 2012, in McFarland, supra. Appellant timely filed a notice of appeal with the Supreme Court of Ohio from the decision and judgment of the Sixth District Court of Appeals joumalized May 4, STATEMENT OF THE FACTS Appellee was under investigation by the Whitehouse Police Department (hereinafter "WPD"), located in Lucas County, Ohio, from September 2009 through February The investigation involved appellee participating in an online chat with a police officer, Officer Curtis Carpenter (hereinafter "Carpenter"), posing as a 13 year old female. Carpenter testified that the target of the investigation was to try to interact with adult males or females online who are attempting to meet or speak to underage males or females, provide sexually oriented pictures in chat messages, and trying to set a meeting. Carpenter and appellee, through a series of chats, agreed to meet. Appellee was arrested on February 27, 2010, at a decoy house where the meeting was set to take place. Appellee thought he was meeting a 13 year old female named "Ashley." Appellee was charged with Disseminating Matter Harmful to Juveniles and Importuning. Said charges were based on the 3

8 sexual online chat and the fact that appellee came out to meet the undercover officer for sex. At no time during Carpenter's investigation did Carpenter have access to appellee's computer, nor did he have any information that there was any kind of child pornography on the computer. Appellee entered pleas of guilty in Lucas County to the amended felony charges of Attempted Disseminating Matter Harmful to Juveniles and Attempted Importuning, misdemeanor offenses. On the date of appellee's arrest, the WPD went to appellee's house in Erie County, Ohio, and with the assistance of the Erie County Sheriff's Department (hereinafter "ECSD"), confiscated appellee's computer. Appellee had signed a "consent to search form" to search his home for the electronics in question. The confiscated computers were sent to a detective in the Toledo Computer Crimes Unit in order to gather evidence in the case. However, due to the amount of time that it takes to gather evidence from the confiscated computers, appellee had already pled to the misdemeanors offenses in Lucas County before the WPD received any evidence from the computer. Carpenter testified that child pornography was found on appellee's computer. As the images had nothing to do with WPD's case against appellee, WPD contacted the ECSD and asked if they wanted to pursue child pornography charges against appellee, as the images were evidence of other crimes connnitted by appellee in Erie County, Ohio. The ECSD pursued charges, and the computer was released to the ECSD. To Carpenter's knowledge, at no time was appellee under arrest or charged with possession of child pornography in his jurisdiction. Carpenter testified at the hearing on the motion to dismiss that it was not uncommon for a defendant to not be charged in his jurisdiction with possession of child pornography if the computer was located in another county and had nothing to do with WPD's investigation: 4

9 A. The child pornography pictures were - were either uploaded, downloaded, or viewed, in this case, in Erie County. There was nothing that the pornography has to do with in the Village of Whitehouse. Carpenter then stated Lucas County did not have the jurisdiction to file child pornography charges. Carpenter verified that no child pornography in the form of pictures, photos, or videos, was sent to him by appellee during the online chats. The child pornography was not found until after appellee's computer was seized and analyzed. Furthermore, there was a joint stipulation to the admission of exhibits, which included the report and results of the Toledo Computer Crimes Unit. ARGUMENT PROPOSITION OF LAW NO. ONE: UNDER THE ANALYSIS SET FORTH IN STATE v. JOHNSON, 128 Ohio St.3d Ohio-6314, THE OFFENSES OF ATTEMPTED DISSEMINATING MATTER HARMFUL TO A JUVENILE AND ATTEMPTED IMPORTUNING COMMITTED IN LUCAS COUNTY WERE NOT ALLIED OFFENSES BASED ON THE SAME CONDUCT AS THE4FFENSES COMMITTED IN ERIE COUNTY OF PANDERING OBSCENITY INVOLVING A MINOR AND PANDERING SEXUALLY ORIENTED MATTER INVOLVING A MINOR WHEN THE OFFENSES INVOLVED SEPARATE VICTIMS. THEREFORE, THE DOUBLE JEOPARDY CLAUSE DOES NOT ATTACH. PROPOSITION OF LAW NO. TWO: OHIO REV. CODE ANN. &2901,12(H) PRllViilEC TT.7AT WHEN AN OFFENDER AC PART OF A(YTRCE OF C'RTMTNAT. CONDUCT, COMMITS OFFENSES IN DIFFERENT JURISDICTIONS, HE MAY BE TRIED FOR ALL OF THOSE OFFENSES IN ANY JURISDICTION IN WHICH ONE OF THE OFFENSES OCCURRED. THERE IS NOTHING IN THE LANGUAGE OF THE STATUTORY PROVISO THAT MANDATES THAT ALL OFFENSES CONSTITUTING THE COURSE OF CRIMINAL CONDUCT MUST BE TRIED ONLY IN A SINGLE JURISDICTION. State v. Barnett (1998), 124 Ohio App. 3d 746, headnote 1. The trial court's attitude in granting appellee's motion was unreasonable, arbitrary, and unconscionable. Double jeopardy did not attach, and the trial court's reliance on the case of Johnson, snnra, was misinterpreted and erroneously expanded. The Sixth District Court of Appeals abused its discretion in adopting the decision of the trial court as to the allied offense argument. The crux of the appeal was not a jurisdictional issue as much as an 5

10 interpretation and application of Johnson and the double jeopardy issue. Even though the reviewing court stated the court conducted a de novo review, the Sixth District Court of Appeals failed to delineate how the court reached the decision as to allied offenses requiring prosecution only in Lucas County. What the reviewing court does discuss is that the offenses were all a part of a course of conduct and, therefore, should have been prosecuted in Lucas County, erroneously relying on the case of Urvan, supra. In the case at bar, when the trial court granted appellee's motion to dismiss, the trial court stated that: "Lucas County chose to convict the Defendant and by doing so elected on behalf of the State to pursue only one of the allied offenses. Jeopardy must attach as a result of Lucas County's action. This conclusion comports with fairness and the double jeopardy mandate." In reaching this conclusion, the trial court determined that: [T]he State relied on the same conduct to prove both Attempting to Disseminate Matter Harmful to Juveniles in violation of Revised Code and Pandering Sexually Oriented Matter Involving a Minor in violation of Revised Codes (A)(5) and (A)(5). It is indeed possible to commit one offense and commit the other with the same conduct. The Defendant's conduct, in attempting to disseminate matter harmful to juveniles, pandering sexually oriented matter involving a minor and pandering obscenity involving a minor was the 9aitLe, to wti[ ho pvsscs5eu vusccnc itiatcrial uiat was aiaiiaaiui tv,ju'v'eiiiicu uricl.,r each charge and attempted to disseminate the same. *^* Thus the Court determines that it is possible to commit one offense and commit the other with the same conduct. The Court further determines not only can the offenses be committed by the same conduct but also the offenses were indeed committed by a single act, committed with a single state of mind and thus were indeed committed by the same conduct. Therefore the offenses are allied offenses of similar import and shall merge. (Emphasis in original) O.R.C governs whether an individual may be convicted and sentenced on multiple counts and states that: 6

11 (A) Where the same conduct by defendant can be construed to constitute two or more allied offenses of similar import, the indictment or information may contain counts for all such offenses, but the defendant may be convicted of only one. (B) Where the defendant's conduct constitutes two or more offenses of dissimilar import, or where his conduct results in two or more offenses of the same or similar kind committed separately or with a separate animus as to each, the indictment or information may contain counts for all such offenses, and the defendant may be convicted of all of them. Recently, in Johnson, supra, this Honorable Court explained merger and held that: Under R.C , the court must determine prior to sentencing whether the offenses were committed by the same conduct. Thus, the court need not perform any hypothetical or abstract comparison of the offenses at issue in order to conclude that the offenses are subject to merger. In determining whether offenses are allied offenses of similar import under R.C (A), the question is whether it is possible to commit one offense and commit the other with the same conduct, not whether it is possible to commit one without committing the other. [State v.] Blankenship, 38 Ohio St.3d at (Whiteside, J., concurring) ("It is not necessary that both crimes are always committed by the same conduct but, rather, it is sufficient if both offenses can be committed by the same conduct. It is a matter of possibility, rather than certainty, that the same conduct will constitute commission of both offenses." [Emphasis sic]). If the offenses correspond to such a degree that the conduct of the defendant constituting commission of one offense constitutes commission of the other, then the offenses are of similar import. If thp mnltinla nffpncec qan hp rnmmitted by v the s^me conduct, then the court must determine whether the offenses were committed by the same conduct, i.e., "a single act, committed with a single state of mind." (citation omitted) If the answer to both questions is yes, then the offenses are allied offenses of similar import and will be merged. Conversely, if the court determines that the commission of one offense will never result in the commission of the other, or if the offenses are committed separately, or if the defendant has separate animus for each offense, then, according to R.C (B), the offenses will not merge. Johnson, 128 Ohio St.3d at *9-10, In the case at bar, appellee was charged in Lucas County for Disseminating Matter Harmful to Juveniles pursuant to O.R.C , which provides in pertinent part that: 7

12 Disseminating matter harmful to juveniles (A) No person, with knowledge of its character or content, shall recklessly do any of the following: (1) Directly sell, deliver, furnish, disseminate, provide, exhibit, rent, or present to a juvenile, a group of juveniles, a law enforcement officer posing as a juvenile, or a group of law enforcement officers posing as juveniles any material or performance that is obscene or harmful to juveniles; (2) Directly offer or agree to sell, deliver, furnish, disseminate, provide, exhibit, rent, or present to a juvenile, a group of juveniles, a law enforcement officer posing as a juvenile, or a group of law enforcement officers posing as juveniles any material or performance that is obscene or harmful to juveniles; (3) While in the physical proximity of the juvenile or law enforcement officer posing as a juvenile, allow any juvenile or law enforcement officer posing as a juvenile to review or peruse any material or view any live performance that is harmful to juveniles. The Lucas County charges were based upon appellee's numerous obscene and sexually graphic online messages that were sent to Carpenter who was posing as an underage female. In contrast, appellee's charges in Erie County stemmed from the child pornography found on appellee's computer in violation of O.R.C (A)(5) which provides that: Pandering obscenity involving a minor (A) No person, with knowledge of the character of the material or performance involved, shall do any of the following: (5) Buy, procure, possess, or control any obscene material, that has a minor as one of its participants; Appellee was also charged in Erie County for violating O.R.C (A)(5) which provides that: Pandering sexually oriented matter involving a minor (A) No person, with knowledge of the character of the material or performance involved, shall do any of the following: 8

13 (5) Knowingly solicit, receive, purchase, exchange, possess, or control any material that shows a minor participating or engaging in sexual activity, masturbation, or bestiality; It is clear from the record that the charges from Lucas County and Erie County were based on separate conduct and, therefore, separate animus. In Erie County, appellee possessed child pornography as his computer was in his residence. The pornography was found when appellee's computer was seized in Erie County and analyzed by the Toledo Police Department. While the conduct resulting in the Lucas County convictions occurred on the same computer, appellee acted separately and distinctly as to the child pornography. In fact, appellee can disseminate matter hannful to a juvenile via a computer without possessing child pornography. In contrast, a defendant can possess child pornography without disseminating matter harmful to a juvenile. It has been held in Cooner, 2010-Ohio-1983, *13, 34 quoting State v. Hendricks, 2009 Ohio App. LEXIS 4691, 2009-Ohio-5556 (Ohio App. 8 Dist.), that multiple convictions are allowed for each individual computer image under O.R.C , as a separate animus exists each time a separate image or file is downloaded or saved. (Emphasis added). See, also State v. Stone, 2005 Ohio App. LEXIS 4720, 2005-Ohio-5206 (Ohio App. 1 Dist.); State v. McCartney, 2004 Ohio App. LEXIS 4325, 2004-Ohio-4781 (Ohio App. 12 Dist.); State v. Yodice, 2002 Ohio App. LEXIS 7163, 2002-Ohio-7344 (Ohio App. 11 Dist.). More recently, in State v. Eal, 2012 Ohio App. LEXIS 1235, 2012-Ohio-1373 (Ohio App. 10 Dist.), the Tenth District Court of Appeals recognized the holding in Coo er and held that the trial court properly refused to merge all counts of the indictment into one for sentencing 9

14 purposes where "the charges in the indictment pertained to defendant's acts of downloading `ten separate and distinct images and/or videos. "' Eal at 53, 89. The court stated that: Although defendant may have uploaded the ten images at around the same time, each file he uploaded constitutes a new and distinct crime. "[T]he mere fact that the crimes occurred in quick succession * * * does not mean that they were not committed separately or with separate animus." State v. Blanchard, 8th Dist. No , 2009 Ohio 1357, 12, reversed on other grounds, State v. Williams, 129 Ohio St.3d 344, 2011 Ohio See State v. Coouer, 8th Dist. No , 2010 Ohio 1983, 34, quoting State v. Hendricks, 8th Dist. No , 2009 Ohio 5556, 35 (finding "multiple convictions are allowed for each individual image because a separate animus exists every time a separate image or file is downloaded and saved"); State v. Collier, 8th Dist. No , 2011 Ohio 2791, 12 (concluding the four different digital images found on the defendant's cell phone "resulted in four separate violations of R.C (A)(5), so the counts do not merge"); State v. Stone, 1st Dist. No. C-40323, 2005 Ohio 5206, 8-9. Eal, 2012-Ohio-1373 at 55-56, See, also McCartney, supra, (With defendant victimizing several children by possessing graphic images involving sexual abuse, possession of the images is not a single occurrence. Defendant's possession of several images constituted different and separate crimes for which defendant could be sentenced to numerous counts). Based on the rulings from various Ohio courts, it follows that appellee did not violate the Erie Cnnntv nffpnsec nn`1pr O R C and the T.ucns Cnnntv nffeme- 0R.C with ----^ _ -_- _-_^ ^ - - the same animus. Therefore, they are not allied offenses and the double jeopardy clause was not implicated. In O'Connor v. Erwin, (S.D.Ohio), Case No. C , 2008 U.S. Dist. LEXIS 25423, the court held that Double Jeopardy did not bar subsequent prosecution by stating that: In the Warren County prosecution, petitioner was charged with and convicted of pandering obscenity involving a minor in violation of Ohio Rev. Code (A)(5) and illegal use of a minor in nudity-oriented material or performance in violation of Ohio Rev. Code (A)(3) for having child pornography on his computer hard drive which was located at a repair shop in Warren County. In the Butler County prosecution, petitioner was charged with violations of Ohio Rev. Code (A)(1) based on materials on CD roms 10

15 and floppy disks seized from petitioner's Butler County home. Section (A)(3) prohibits the possession or viewing of materials or performances while section (A)(1) prohibits the photography, creation, production or transfer of materials or performance. Since each offense contains an element not contained in the other, they do not constitute the same offense and Double Jeopardy does not bar petitioner's subsequent prosecution. (Emphasis added) Id. at Therefore, the use of the same computer does not affect the allied offense determination. In the Court of Appeals, appellee relied on the case of State v. Edwards, 2011 Ohio App. LEXIS 69, 2011-Ohio-95 (Ohio App. 8 Dist.), which case involved the dismissal of an indictment based on double jeopardy grounds. In Edwards, the State appealed the trial court's granting of defendants' motions to dismiss. Officers arranged for the purchase of one and onehalf ounces of crystal methamphetamine from defendants through a confidential informant (hereinafter "CI"). During the transport of the drugs, officers initiated a stop of defendants' vehicle for speeding. Defendants were arrested and their vehicle was immediately searched. Officers located less than three grams of suspected methamphetamine, pills, and paraphernalia. At that time, officers did not locate the one and one-half ounces of methamphetamine the CI had 7.1 ar *2-a 4F_7 Tlafandanrc' rar was imnnnnded at the police department equ,. _ garage and was further searched by officers and dogs in attempts to locate the drugs intended for purchase by the CI. The city mechanic also searched the vehicle, including the engine compartment. State Highway Patrol troopers and their K-9s conducted a search with no avail. The car remained in a secure lot for over two months. Id. at *4, 9. Defendants were charged with the evidence that had been seized upon their arrest, and entered guilty pleas on June 17, On that same day, the detective in charge of conducting the original controlled buy was contacted by the Columbus Police Department narcotics vice unit and was informed that, according to another CI, defendants had kept large quantities of drugs in 11

16 a secondary fuse box in their vehicle. A search of defendants' vehicle led to the discovery of the one and one-half ounces of drugs meant for the original controlled buy. Id. at *4-5, Edwards is distinguishable from the case at bar for various reasons. An assistant prosecutor informed Edwards' attorney at his sentencing in the initial case that officers had located the additional drugs in defendants' vehicle. Id. at *5-6, 12. It would have been possible to delay sentencing Edwards in order to present evidence to a grand jury and obtain a new charge pursuant to the additional drugs. Id. However, Edwards and his co-defendant were sentenced two weeks after the additional drugs were located. Id. at *7, 14. In the case at bar, the child pornography found on appellee's computer was not located 'until after appellee entered his guilty pleas in Lucas County and after sentencing on April 27, The Supplemental Crime Report from the Toledo Police Department, which indicated the presence of child pornography, was not completed until June 28, 2010, well after appellee was sentenced in Lucas County. Even though appellee stated there may be child pomographic images on his computer, there cannot be a prosecution until or when the images are found. Since the child porn is not an allied offense, any delay in appellee's sentencing would have presented a violation as to appellee being sentenced in a timely manner. See Ohio Rules of Criminal Procedure, Rule 32. In Edwards, the defense presented the indictment from the initial case, which mirrored the second indictment except for the quantity of drugs at issue. Id. at *6, 14. In the case at bar, appellee's indictments from Lucas County and Erie County do not mirror each other, as the charges in the different counties stem from separate and distinct offenses committed by appellee. In Edwards, the appellate court stated that "there was a single act and course of conduct that led to the charges in both cases, that being the police orchestrated a drug buy that culminated 12

17 in appellees' arrest and the impoundment" of the vehicle in question. Id. at *9, 21. hi reaching this conclusion, the court relied on Rashad v. Burt (1997), 108 F.2d 677. The court in Rashad "observed that `successive prosecutions based on the same fact situation are barred by double jeopardy if the separate charges could have been joined and no significant additional fact was required in the second prosecution."' Edwards, 2011-Ohio-95 at *10, 21, quoting Rashad at 680. In the case at bar, a significant additional fact was required in the second prosecution: the existence of child pornography on appellee's computer. Appellee's charges in Lucas County stemmed from the messages contained in his online chats with the police officer. The charges relied on the messages sent by appellee, and his arriving at a decoy house to meet for sex, but did not tum on the existence of child pornography on appellee's computer, nor was this pornography known nor was it a target in the investigation. In contrast, the charges in Erie County stemmed from the existence of the pornography found on appellee's computer; therefore, making the existence of the pornography a significant additional fact required in the second prosecution. As recognized in Edwards: In Rashad, the "only additional fact required to convict on th[e] second prosecution was the cocaine's location in the car." Id. [at 680]. The court held this fact was not "significant" because "Rashad's possession of cocaine in his home and in his automobile constituted a single transaction. The seizure, and in part the discovery, of both quantities of the drug resulted from the same police confrontation with Rashad. Rashad's possession of both quantities occurred at the same time and place, and displayed a single intent and goal-distribution." Id. at 681. Where the possession and distribution of two caches of the same controlled substance are unified by a single intent and goal and arise out of a continuous time sequence, double jeopardy bars successive prosecutions. Id. Edwards, 2011-Ohio-95 at * 10, 21. The facts in the case at bar are distinguishable because appellee's sending of obscene messages and attempts to meet for sex did not occur at the same time and place, or with the same 13

18 intent as did appellee's downloading and viewing of child pornography. The child pornography was not known when appellee was charged. In Rashad, officers specifically looked for the drugs in issue. Appellee did not commit the offenses with the same animus or conduct and, therefore, were not allied offenses. The Erie County prosecution was separate from appellee's initial prosecution in Lucas County. Under the guidance of Johnson, snnra, this Honorable Court is urged to find that the charges are not allied offenses, and the double jeopardy clause does not attach. As stated in Johnson, a court must determine if a defendant committed the offenses in a single act or with a single state of mind. When separate convictions of a defendant are based on separate conduct, those convictions are not allied offenses of similar import. See State v. Mitchell, 2011 Ohio App. LEXIS 827, 2011-Ohio-973, *14-15, 43 (Ohio App. 6 Dist.)(defendant's conduct related to one Count should not merge with other Counts because it was a similar offense to the others, the conduct occurred at a separate location). In the case at bar, the appellate court based its decision on the case of Urvan, sunra. The decision of the appellate court recognized the holding in Urvan that "the state may not, `either by design or inadvertence, separate charges originating in one `course of criminal conduct' and pursue them separately in the courts of more than one county even though the venue could be laid in any of the counties under R.C (H). State v. Urvan,..." McFarland, Ohio-1991, 5-6, 10. The appellate court specifically noted that "[t]he Urvan court noted that `when Medina County took jurisdiction, that county***elected on behalf of the state to pursue only one of the two allied offenses involved, i.e., receipt of stolen property rather than grand theft."' (Emphasis added) McFarland, 2012-Ohio-1991 at 6, 11. Appellant concedes that 14

19 Urvan is correct under the facts of the case. However, nowhere in the court's decision in the case at bar did the reviewing court perform an analysis of the charges involved to determine whether the charges were truly allied offenses. As argued throughout, appellant respectfully asserts that appellee's charges are not allied offenses; therefore, Urvan does not control. Appellee's indictment should be reinstated. Since the offenses are not allied offenses, Erie County has the venue to prosecute appellee. As was stated in Barnett, 124 Ohio App.3d at headnote 1: Ohio Rev. Code. Ann (H) provides that when an offender, as part of a course of criminal conduct, commits offenses in different jurisdictions, he may be tried for all of those offenses in any jurisdiction in which one of the offenses occurred. There is nothing in the language of that mandates that all offenses constituting a course of criminal conduct must be tried only in a single jurisdiction. *** ****... Further, there is nothing in the language of R.C (H) which mandates that where venue lies in two different jurisdictions, one jurisdiction is to be preferred over another. See, also State v. Amato (1989), 55 Ohio App.3d 32; State v. Gonzales, Case No. 92WDO34, 1002 (lhi^ Ar... T FXTC 1 1 SS (()hin Ann FV. T)ict., FPh _. 2h, rr., ^.,..., rr.,. CONCLUSION Because appellant has demonstrated to this Honorable Court why this case is one of public or great general interest, appellee respectfully moves that appellant's case be accepted for review. Respectfully submitted, Mary/Ann Ba5ylski (P038856) Assistant Prosecuting Attorney 15

20 CERTIFICATION This is to certify that a copy of the foregoing Memorandum in Support of Jurisdiction was mailed to Jeffrey J. Whitacre, Erie County Public Defender, 220 Columbus Ave., Sandusky, Ohio 44870, this I^'04' day of June, 2012, by regular U.S. mail. Mary A(nn BaryA (00g856) Assistant Prosecuting Attorney 16

21 APPENDIX

22 IN THE COURT OF APPEALS OF OHIO SIXTH APPELLATE DISTRICT ERIE COUNTY State of Ohio Court of Appeals No. E V. Appellant Trial Court No CR-292 Jeffery L. McFarland Appellee DECISION AND JUDGMENT Decided: MAY Kevin J. Baxter, Erie County Prosecuting Attorney, and Mary Ann Barylski, Assistant Prosecuting Attorney, for appellant. w Jeffrey J. Whitacre, Erie County Public Defender, for appellee. HANDWORK, J. { 1} This is an appeal from a judgment issued by the Erie County Court of Common Pleas, dismissing charges against appellee on the basis of double jeopardy. Because we conclude that the trial court properly granted the motion to dismiss, the trial court's judgment is affirmed. { 2} On August 11, 2010, appellee, Jeffery L. McFarland, a resident of Erie County, Ohio, was indicted in Erie County on six counts of pandering obscenity 1. ^ A,

23 involving a minor, a violation of R.C (A)(5) and six counts of pandering sexually oriented matter involving a minor, a violation of R.C (A)(5). Each count was allegedly committed on February 28, Appellee filed a motion to dismiss on the basis of double jeopardy, asserting that he had already been prosecuted and convicted in Lucas County for the conduct which was the basis for the offenses charged in Erie County. { 3} During a hearing held on the motion, the Erie County trial court heard witness testimony and admitted a "joint stipulation," Exhibit A, which consisted of several documents, including a computer lab report. The following facts were presented during that hearing. { 4} On February 27, 2010, the Erie County Sheriff s Department ("ECSD") received information from the Whitehouse Police Department ("WPD") in Lucas County, Ohio, that as a result of an internet sting operation, appellee had been charged with allegedly using his computer in Erie County to meet and solicit sexual activity with a WPD officer posing as an underage girl in Lucas County. The ECSD was informed that appellee had been arrested and allegedly consented to a search of his computer. The next day, February 28, 2010, WPD officers, assisted by the ECSD, confiscated appellee's computer from his house in Erie County. WPD officers then took the computer back to Lucas County where it was turned over to the Toledo Police Department crime lab to search for evidence of child pornography. Meanwhile, appellee was charged in Maumee 2.

24 Municipal Court, Lucas County, Ohio, case No. 10-CRA-00143, with two offenses: disseminating matter harmful to juveniles and importuning. { 5} Incident to appellee's written consent to seize and search his computer on the day of his arrest in February 2010, a crime lab detective searched to "determine the presence of evidence related to child enticement and child pornography." The crime lab report notes that the investigation took place on April 5, 2010, and initially found "several child pornography related thumbnails." The detective then obtained a search warrant and continued his search. According to the computer lab report, dated June 28, 2010, only the thuinbnail images remained in a particular folder. The original full size images were no longer on the hard drive and were not recovered. { 6} Pursuant to a plea agreement in the Lucas County case, appellee pled "no contest" to and was found guilty of amended charges of attempted disseminating matter harmful to juveniles and attempted importuning. On June 11, 2010, appellee was sentenced to 180 days in jail, with 105 suspended, and placed on probation for three years with conditions that he participate in sex offender counseling and no use of a computer or intemet access devices. Appellee also forfeited his computer and vehicle and was deemed to be a Tier 1 Child Victim Offender, requiring registration every year for 15 years. Two months later, appellee was indicted in the present Erie County case. { 7} After considering the evidence presented, the trial court in the present case granted appellee's motion to dismiss, ruling that double jeopardy had attached since Lucas County had pre-empted venue and jurisdiction over the charges filed in Erie 3.

25 County. The court reasoned that, pursuant to State v. Johnson, 128 Ohio St.3d 153, 2010-Ohio-6314, 942 N.E.2d 1061, the new charges were allied offenses based on the same conduct as the convictions in Lucas County. Moreover, the trial court determined that, despite Lucas County's election to pursue only one of the allied offenses, jeopardy attached, precluding the additional charges sought in Erie County. { 8} Appellant, the state of Ohio, now appeals, arguing the following sole assignment of error: The trial court erred, thereby abusing its discretion, when the trial court granted appellee's motion to dismiss based on double jeopardy. { 9) On appeal a de novo standard of review is used when reviewing the grant or denial of a motion to dismiss a criminal. indictment on the grounds of double jeopardy. State v. Williams, 6th Dist. No. WD , 2008-Ohio-2730, 7; State v. Betts, 8th Dist. No , 2007-Ohio-5533, 16; State v. Mobus, 12th Dist. No. CA , 2005-Ohio-6164, 25. When reviewing criminal prosecutions, including double jeopardy dispositions, the state will be considered as a single entity whether acting through one or the other of its subordinate units, i.e., in this case, Lucas or Erie Counties. See State v. Collins, 12th Dist. No. CA , 2007-Ohio-5392, 21, citing Waller v. Florida, 397 U.S. 387, 392, 90 S.Ct. 1184, 25 L.Ed.2d 435 (1970) and Reynolds v. Sims, 377 U.S. 533, 575, 84 S.Ct. 1362, 12 L.Ed.2d 506 (1964). { 101 R.C provides that when several offenses are committed in Ohio in different jurisdictions as "part of a course of criminal conduct," the venue may be lodged 4.

26 for all the offenses in any one jurisdiction where "one such offense or any element thereof occurred." Nevertheless, as noted by the trial court in this case, the state may not, "either by design or inadvertence, separate charges originating in one `course of criminal conduct' and pursue them separately in the courts of more than one county even though the venue could be laid in any of the counties under R.C (H)." State v. Urvan, 4 Ohio App.3d 151, , 446 N.E.2d 1161 (8th Dist.1982), limited by State v. Mutter, 14 Ohio App.3d 356, 357, 471 N.E.2d 782 (8th Dist.1983). Prosecution in two different counties may be pursued only for separate and distinct acts committed on different dates. State v. Barnett, 124 Ohio App.3d 746, 750, 707 N.E.2d 564 (2d Dist.1998). { 11} Although limited to its facts, we fmd Urvan to be instructive in this case. In Urvan, the defendant, who had committed offenses in both Medina and Cuyahoga Counties, agreed to a plea based upon a sentence which included an early diversion program for offenses initially charged in Medina County. Urvan, supra, at 157. Later, Cuyahoga County sought to charge the defendant with additional offenses. Id. The Urvan court noted that "when Medina County took jurisdiction, that county *** elected on behalf of the state to pursue only one of the two allied offenses involved, i.e., receipt of stolen property rather than grand theft." Id. { 12} The Urvan court noted that permitting successive prosecutions was contrary to the purpose of the diversion program. Urvan, supra, at 157. In other words, splitting venue and permitting a second venue to prosecute for crimes which the state, in 5.

27 the first venue, did not pursue is prejudicial to the defendant's terms of sentence and "violates the spirit and letter of the constitutional Double Jeopardy policy and the spirit of the legislative policy of the state as represented in the venue and allied offense statutes." Id. at 158. See also State v. Walker, 6th Dist. WD-86-32, 1987 WL (June 5, 1987) (kidnapping and rape of three persons in course of criminal conduct could have been tried in either Wood or Lucas Counties, but pursuant to R.C (H), all separate offenses had to be brought in same jurisdiction to avoid double jeopardy issues). The Mutter court still noted that Urvan "seems to emphasize that the prosecutor cannot play `dirty pool' where a person is in a diversion program." Mutter, supra. { 13} In this case, the WPD from Lucas County conducted the internet sting operation, arrested appellee, and then went to Erie County and seized his computer, all in connection with the purpose to find evidence to support charges related to "child enticement and pornography." hi an affidavit by an ECSD deputy dated May 27, 2010, to procure an additional warrant to search appellee's computer, prior to the computer being sent to the Toledo Crime Lab, appellee admitted during an interview with Officer Carpenter of the WPD that his computer had child pornography on its hard drive. In addition, according to an investigative report from the ECSD, that department was made aware on May 19, 2010 that, as early as May 5, 2010, the crime lab in Toledo had found actual evidence of child pornography on appellee's computer. { 14} Moreover, the Erie County offenses were alleged to have occurred on February 28, 2010, the day the computer was seized by police as a result of and related to 6.

28 appellee's arrest for the conduct and crimes charged in Lucas County. At the outset, appellee readily acknowledged the existence of child pornography on his computer. Therefore, both the WPD and the ECSD were aware of evidence of child pornography prior either to appellee's plea or sentencing for the charges brought in Lucas County. Contrary to appellant's suggestion, pursuant to R.C (H), appellee could have been tried in either Erie County or Lucas County for any charges relating to the sting or the computer, including the thumbnail images, since venue would have been proper in either county. { 15} We do not negate the serious nature of appellee's acts, but, like the defendant in Urvan, appellee pled "no contest" in reliance on his plea agreement in the Lucas County case for crimes connected with his use of a computer to commit sex crimes against minors. As part of his sentence he was placed on probation, with the condition that he complete a Community Based Correctional Facility program in Lucas County. His computer and vehicle were both forfeited. { 16} Nothing in the record indicates that appellee had any notice from either the Maumee Municipal Court, the Maumee Municipal prosecutor, or any Erie County officials that any other charges for offenses connected with his computer use for child sex offenses were still lingering. Like the defendant in Urvan, appellee's Lucas County sentence would be rendered meaningless by piecemeal prosecution of crimes which were known but uncharged by the prosecution in Lucas County at the time of the plea. Under the limited facts of this case, any successive prosecution for additional child sex crimes 7.

29 related to the seizure of his computer, which could have been brought in the Lucas County case but were not, frustrates the purpose and intent of the plea agreement and sentencing in the Lucas County case and is unduly prejudicial to appellee. We conclude, therefore, under the facts of this case, that the trial court properly granted appellee's motion to dismiss. { 17} Accordingly, appellant's sole assignment of error is not well-taken. { 18} The judgment of the Erie County Court of Common Pleas is affirmed. Appellant is ordered to pay the costs of this appeal pursuant to App.R. 24. Judgment affirmed. A certified copy of this entry shall constitute the mandate pursuant to App.R. 27. also 6th Dist.Loc.App.R. 4. See Peter M. Handwork, J. JUDG Arlene Singer, P.J. "^" A Ste^hen A. Yarbroug h, J. CONCUR. l JUDGE This decision is subject to further editing by the Supreme Court of Ohio's Reporter of Decisions. Parties interested in viewing the fmal reported version are advised to visit the Ohio Supreme Court's web site at: oh.us/rod/newpdf/?source=6. 8. A TRUE COPY OF THE ORIGINAL FILED IN THIS OFFICE. LUVADA S. WILSON, CLERK OF COURTS Erie y4^ -.J [ ^