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State v. Davis

Court of Appeals of Ohio, Twelfth District

June 24, 2013

STATE OF OHIO, Plaintiff-Appellee,
v.
GEORGE D. DAVIS II, Defendant-Appellant.

CRIMINAL APPEAL FROM BUTLER COUNTY COURT OF COMMON PLEAS Case No. CR2012-06-0858

Michael T. Gmoser, Butler County Prosecuting Attorney, Kimberly L. McManus, Government Services Center, for plaintiff-appellee.

Jeffrey W. Bowling, for defendant-appellant.

OPINION

M. POWELL, J.

{¶ 1} Defendant-appellant, George D. Davis II, appeals his sentence in the Butler County Court of Common Pleas for trafficking in heroin and importuning.

{¶ 2} On July 3, 2012, the Butler County Grand Jury indicted Davis on one count each of trafficking in heroin in violation of R.C. 2925.03(A)(1), importuning in violation of R.C. 2907.07(D)(1), and compelling prostitution in violation of R.C. 2907.21(A)(2)(a). Davis initially pled not guilty, but after reaching a plea agreement with the state, Davis pled guilty to trafficking in heroin and importuning, as charged, and to a reduced charge of attempted compelling prostitution. The trial court held a plea, disposition and sexual classification hearing on September 14, 2012. During this hearing, the state presented the following facts from which these charges arose:

[A]s to count one, on or about April the 15th of 2012 at Fairfield, Butler County, Ohio, George Davis did knowingly sell or offer to sell heroin or a compound, mixture or preparation of substance containing heroin, when the offense was committed in the vicinity of a school or in the vicinity of a juvenile. In this case a juvenile being [C.]J. whose date of birth is December 13th of 1996. * * *
As to count two, on or about April the 15th of 2012 in Fairfield, Butler County, Ohio, George Davis did solicit another by means of a telecommunication device as defined in Section 2913.01 of the Revised Code to engage in sexual activity with the offender when the offender is 18 years of age or older and the other person is 13 years of age or older, but less than 16 years of age and the offender knows the other person is 13 years of age or older, but less than 16 years of age or is reckless in that regard and the offender is four or more years older than the other person. The defendant in this case having a date of birth of March 3rd, 1988, soliciting [C.]J. who's date of birth is December the 13th of 1996 via text messages to engage in sexual intercourse. * * *.
As to count three, on or about April the 15th of 2012 in Fairfield, Butler County, Ohio, George Davis did knowingly attempt to induce, procure, solicit, request or otherwise facilitate a minor to engage in sexual activity for hire. The minor being [C.]J. who's date of birth is December 13th of 1996.

{¶ 3} After conducting a plea colloquy, the court accepted Davis' guilty plea and made a finding of guilt as to all three counts. Davis waived the presentence investigation report, and the court proceeded with sentencing. Prior to imposing sentence, the trial court considered whether any of the offenses merged. Davis asserted his position that "the offenses are allied offenses" but ultimately "defer[red] to the Court's knowledge and understanding and interpretation of the law." The state similarly deferred to the court as to allied offenses. The court found that based on the facts of this case, trafficking in heroin and attempted compelling prostitution merged, but that importuning and trafficking in heroin would not merge. In reaching this determination, the court stated:

Count three involves an element that the sexual activity be for hire. Count one envisions a sale or offer of sale - - to sell. A sale of course involves drugs or merchandise in return or consideration for hire, as alleged to be the consideration and has now found to be the consideration for sexual activity for hire.
So the court will find that those offenses, Counts one and three are so closely allied as to the facts, and the law applying the Johnson criteria that they are indeed allied offenses.
[I]n this Court's estimation counts one and two are not allied offenses. Count one is trafficking, of course, knowingly selling or offering to sell drugs, committed in the vicinity of a school. Count two is soliciting another by means of a telecommunication device to engage in sexual activity and of course the age requirement set forth in the statute. The acts and conduct committed in count two were completely opposite and different from the acts necessary to complete the offense in count one. So the court will find that the offenses do not correspond to such degree that the conduct of the defendant constituting the commission of count one would result in the commission of count two.
Furthermore, the Court will find that the - - based upon the facts and evidence, that the defendant had a separate state of mind in committing both counts one and two, a ...

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