IN THE SUPREME COURT OF OHIO ) DISTRICT 08CA ^ ) LORAIN COUNTY ) COMMON PLEAS ) COURT CASE NO. ) 07CR074486

Transcription

1 IN THE SUPREME COURT OF OHIO STATE OF OHIO ) SUPREME COURT CASE ) NO Appellee, ) ) vs. ) ON APPEAL FROM THE ) COURT OF APPEALS, STANLEY MARRERO ) NINTH APPELLATE Appellant. ) DISTRICT 08CA ^ ) LORAIN COUNTY ) COMMON PLEAS ) COURT CASE NO. ) 07CR MEMORANDUM OF APPELLEE IN OPPOSITION TO JURISDICTION DENNIS P. WILL # DANIEL G. WIGHTMAN, # Lorain County Prosecuting Attorney Counsel for Appellant Lorain County, Ohio 158 Lear Road, Suite A 225 Court Street, 3`a Floor Avon Lake, Ohio Elyria, Ohio (440) (440) (440) (Fax) (440) BY: MARY R. SLANCZKA, # Assistant Prosecuting Attorney COUNSEL FOR APPELLEE IR UU Lrz VE AVO 07 CLERK CF CCURT SUPREME COURT OF OHIO COUNSEL FOR APPELLANT FRED,^^^C. [l 12n[1?^ CLERK OF COURT SUPRENiE OOURT OF 0WI0

2 TABLE OF CONTENTS Table of Contents... ii Table of Authorities... iii Explanation of Why This Case Does Not Involve A Substantial Constitutional Question And Is Not A Case Of Public Or Great General Interest...1 Statement of the Case...2 Statement of Facts...3 LAW & ARGUMENT...5 RESPONSE TO APPELLANT'S PROPOSITIONS OF LAW I. The criminal offense of Intimidation of a victim or witness, in violation of O.R.C (A), does not require proof that the victim intended to report a crime but was hindered or intimidated as a result of coercion or threat II. To prove masturbation, an element of the offense of Public Indecency, there must be evidence of manual manipulation of genital organs for sexual gratification under circumstances that the manipulation is likely to be viewed by others. Ohio Revised Code (a)(3) Conclusion...11 Proof of Service...11 ii

3 TABLE OF AUTHORITIES Cases Page City of Columbus v. Heck (Nov. 9, 1999), 10"' Dist. No. 98AP ,10 Portage County Bd Of Comm'rs v. City ofakron, 109 Ohio St.3d 106, 2006 Ohio ,6,7 State v. Marrero, 9"' Dist. No. 08CA009467, 2009 Ohio ,8 Statutes and Rules page O.R.C (B)... 6 O.R.C (C)...10 O.R.C (A)(1)... 2 O.R.C (A)(3) ,2,3,5,8,10 O.R.C (A) ,2,3,5,6,7,8 O.R.C (B)... 2 O.R.C (A)(1)...2 O.R.C (A)(2)...2 iii

4 EXPLANATION OF WHY THIS CASE IS NOT A CASE OF PUBLIC OR GREAT GENERAL INTEREST AND DOES NOT INVOLVE A SUBSTANTIAL CONSTITUTIONAL OUESTION Stanley Marrero, hereinafter Appellant, argues that O.R.C (A) should be clarified to require proof that either the accused intended to hinder the filing of a criminal complaint or that the victim felt intimidated about reporting the incident to police. Appellant is essentially asking this Honorable Court to add words to the statute in question to create additional eleinents. Courts are not at liberty to ignore or add words to statutes. Portage County BrG Of Comm'rs v. City ofakron, 109 Ohio St.3d 106, 2006 Ohio 954. There is no great general or public interest in adding elements to a statute that were not enacted by the legislature. Appellant next argues that this case presents a case of great general or public interest as the term "masturbation", as used in O.R.C (A)(3), has not been defined by statute or by this Honorable Court. Appellant claims that the definition of the term masturbation used in the lower courts eliminates a distinction between public nudity and public acts of masturbation. This argument is without merit. When a term is not defined by statute it is to be given its ordinary meaning. Appellant's conduct of grasping his semi-erect penis while requesting oral sex falls within the ordinary meaning of the term "masturbation". The definition used by the lower courts clearly distinguishes between public nudity and public acts of masturbation. This case does not present a question of public or great general interest. Lastly, Appellant claims that this case involves a substantial constitutional question because Appellant was convicted on insufficient evidence. Appellant's convictions for Intimidation in violation of O.R.C (A), and Public Indecency in violation of O.R.C (A)(3) were supported by legally sufficient evidence. Thus, this case does not present a substantial constitutional question. 1

5 STATEMENT OF THE CASE On September 27, 2007, Stanley Marrero, hereinafter Appellant, was indicted by the Lorain County Grand Jury and charged with the following: count one (1) - Intimidation, O.R.C (B), F-3; counts two (2) and three (3) - Theft in Office, O.R.C (A)(1), F-3; counts four (4) and five (5) - Menacing by Stalking, O.R.C (A)(1), F-4; counts six (6) and seven (7) - Dereliction of Duty, O.R.C (A)(2), M-2; count eight (8) - Public Indecency, O.R.C (A)(3), M-3; and count nine (9) - Public Indecency, O.R.C (A)(1), M-4. On September 2, 2008, Appellant executed ajury waiver in open court and elected to have his case tried to the trial judge, Judge Edward Zaleski, a judge of the Lorain County Court of Conunon Pleas. Subsequent to presentation of Appellee's case, the trial court granted Appellant's motion for Crim. R. 29 acquittal as to counts two (2), three (3) and four (4). Appellant was found guilty of the following: count one (1), Intimidation, O.R.C (A), M-1, a lesser included offense; count six (6), Dereliction of Duty; and count eight (8), Public Indecency. Appellant was found not guilty on all other counts. On September 9, 2008, Appellant was sentenced to a total of six (6) months incarceration in the Lorain County Jail, with four months of that sentence suspended. Appellant has since served his sentence. On September 11, 2008, Appellant appealed his convictions to the Ninth District Court of Appeals. On May 26, 2009, the Ninth District Court of Appeals affirmed Appellant's convictions. State v. Marrero, 9`h Dist. No. 08CA009467, 2009 Ohio On July 10, 2009, Appellant filed notice of appeal and a memorandum in support of jurisdiction to this Honorable Court. Appellee now responds. 2

6 ----STATEMENT- OF FAC-TS Appellant was found guilty of three (3) offenses and acquitted of five (5) other offenses. In his Memorandum in Support of Jurisdiction to this Honorable Court Appellant alleges error in the decision of the Ninth District Court of Appeals with respect to two (2) of those convictions. The subsequent statement of facts supports Appellant's convictions for Intimidation in violation of O.R.C (A), and Public Indecency in violation of O.R.C (A)(3). However, other facts exist, which are not included herein, as they are not relevant to this appeal. Appellant became a police officer in the city of Lorain, Ohio in (Tr. 209) Over the years, Appellant would often "befriend" women that he came into contact with during his road patrol duties as a law enforcement officer. (Tr. 15, 76-77, 91, , 176, 189, 209, ) Some of those friendships turned into sexual relationships. (Tr. 15, 76-77, 91, , 176, 189, 209, ) Appellant was friends with Kimberly Pawlowski and would often visit her at her home in Lorain, Ohio, while he was on duty. (Tr ) Donna Haller, a neighbor and friend of Kim Pawlowski, met Appellant through Kim. (Tr. 112) Appellant got Donna's cell phone number after Kim used Donna's cell phone to call Appellant. (Tr. 112) Appellant made many unwanted phone calls to Donna. (Tr. 118) One night Appellant showed up at Donna's house uninvited at about 4:00 a.m. (Tr. 113) Appellant showed up in his police cruiser, wearing his uniform, and gun. (Tr. 113) Appellant requested to come in and speak with Donna. (Tr. 113) Once Appellant was inside, Donna went to the kitchen to put away her dog because Appellant was afraid of the very large dog. (Tr ) When Donna returned from the kitchen Appellant was seated on her couch with his pants and underwear pulled down. (Tr. 114) Appellant was holding his semi erect penis in his hands 3

7 as he asked Donna if she had ever been with a Puerto Rican. if she would give him a blow job, to which she replied "no". (Tr. 115) Appellant asked Donna (Tr ) Donna felt threatened by the situation so she let her dog back out of the kitchen. (Tr. 116) Before leaving, Appellant told Donna that if she said anything to his girlfriend, Kim, that Kim wouldn't believe her. (Tr. 116) Appellant also told Donna that if she ever needed help from the police not to expect any, and that he would make her life a living hell. (Tr. 116, ) Donna didn't report the incident to police because she believed Appellant would carry out his threat. (Tr. 117) On numerous occasions after this inoident Appellant would drive down the alley by Donna's house at night, look into her windows, and shine his spotlight in her windows. (Tr ) Appellant carried through on his threat to make Donna's life a living hell, (Tr , 125) 4

8 LAW AND ARGUMENT RESPONSE TO APPELLANT'S FIRST PROPOSITION OF LAW 1. THE CRIMINAL OFFENSE OF INTIMIDATION OF A WITNESS, IN VIOLATION OF O.R.C (A), DOES NOT REQUIRE PROOF THAT THE VICTIM INTENDED TO REPORT A CRIME BUT WAS HINDERED OR INTIMIDATED AS A RESULT OF COERCION OR THREAT. Appellant asks this Court to hold that the offense of Intimidation, in violation of O.R.C (A), requires proof that either the defendant intended to hinder the victim in filing a criminal complaint or proof that the victim felt intimidated about reporting the crime to police. O.R.C (A) does not require specific intent by the defendant, nor does that statute require proof that the victim felt intimidated. Appellant contends that Appellee failed to prove that Appellant's specific intent and that Appellee failed to prove the victim felt threatened. These arguments are without merit. The trial court found Appellant guilty of Intimidation of a Crime Victim or Witness in violation of O.R.C (A), a misdemeanor of the first degree, as a lesser included offense to the charged count of Intimidation in violation of O.R.C (B), a felony of the third degree. O.R.C (A) provides as follows: O.R.C (A). No person shall knowingly attempt to intimidate or hinder the victim of a crime in the filing or prosecution of criminal charges or a witness involved in a criminal action or proceeding in the discharge of the duties of the witness. Appellant committed the offense of Public Indecency in violation of O.R.C (A)(3), in which Donna Haller was the victim. Donna Haller testified that Appellant came to her home uninvited, pulled down his pants and underwear, sat on her couch with his semi erect penis in his hands, asked her if she had ever been with a Puerto Rican, and asked her for a blow job. (Tr ) Donna felt afraid during this incident because Appellant was on 5

9 duty, in unifonn, had shown up in his police cruiser, and was carrying his gun. (Tr. 113) Appellant proceeded to ask Donna if she would perform oral sex on him. (Tr ) Donna said no and let her dog out of the kitchen. (Tr. 116) Appellant told Donna not to tell his girlfriend Kim, because Kim wouldn't believe her. (Tr. 116) Appellant also told Donna not to expect any help from the police and that he would make her life a living hell. (Tr. 116, ) Donna took this to mean that if she reported Appellant's criminal behavior, the police would not respond if she needed help. (Tr. 116, ) After this incident Appellant would drive past Donna's house in his patrol car, look in her windows, and shine his spotlight in her windows. (Tr , 125) Donna indicated she was afraid that Appellant would find something to charge her with so she kept quiet. (Tr. 117) Appellant was apparently successful in intimidating Donna Haller because she did not go to police out of fear of Appellant. It is a basic tenant of statutory construction that unambiguous, definite statutes are to be applied as written. Portage County Bd. Of Comm'rs v. City ofakron, 109 Ohio St.3d 106, 2006 Ohio 954. Courts are not at liberty to ignore or add words to statutes, Id. O.R.C (A) unambiguously sets forth the elements of intimidation of a victim as follows: one (1), no person shall knowingly; two (2), attempt to intimidate or hinder the victim of a crime; three (3) in filing or prosecution of criminal charges. The mens rea element for the offense of Intimidation in violation of O.R.C (A) is knowingly. Knowingly is defined in O.R.C (B) as follows: "A person acts knowingly, regardless of his purpose, when he is aware that his conduct will probably cause a certain result or will probably be of a certain nature. A person has knowledge of circumstances when he is aware that such circumstances probably exist." O. R. C (B). 6

10 In the present case, Appellant seeks to raise the burden of proof to require specific intent or purposely as the mens rea for the offense of intimidation. This request flies in the face of statutory construction principles. The statute is unambiguous and definite and should be applied as written. Portage County Bd. Of Comm'rs supra. Thus, the mens rea element as written in O.R.C (A) is knowingly and not purposely. Appellant's request to add specific intent or purpose to O.R.C (A) should be rejected. Likewise, proof that the victim felt intimidated is not an element of the crime of Intimidation in violation of O.R.C (A). O.R.C (A) provides that a defendant must knowingly attempt to intimidate or hinder the victim of a crime in filing or prosecuting criminal charges. This statute does not include any reference to the victim's state of mind. In fact, O.R.C (A) includes an attempt to intimidate or hinder the victim. Clearly, the inclusion of an attempt contemplates that a defendant may not be successfal in intimidating a victim into keeping silent. The Ninth District Court of Appeals correctly rejected Appellant's argument that because Appellant was successful in intimidating Haller into not reporting the offense to police, he cannot be convicted of Intimidation. Marrero supra. Appellant further argues that there was insufficient evidence that he intimidated Haller because Haller did not testify that she was threatened not to tell police, rather Haller testified that she was threatened not to tell Appellant's girlfriend, Pawlowski. Appellant completely ignores Haller's testimony wherein she specifically states that she believed that Appellant would charge her with some offense if she told anyone about the incident, and that she would have filed a criminal complaint but for the threats. (Tr. ) Donna Haller fi&her testified that she did not report the incident to police because she believed Appellant would carry out his threats. (Tr. 117) The Ninth District Court of Appeals correctly found that this testimony supported the 7

11 inference that Appellant knew that by making the threats while he was in uniform, carrying a gun, that Haller would not attempt to pursue charges against Appellant. Marrero, supra. Each and every element of the offense of Intimidation was proven by proof beyond a reasonable doubt. Consequently, Appellant's conviction for Intimidation of a Victim in violation of O.R.C (A) is supported by the sufficiency and weight of the evidence. Appellant's first proposition of law is without merit and this Honorable Court should decline to accept jurisdiction of this case. RESPONSE TO APPELLANT'S SECOND PROPOSITION OF LAW II. TO PROVE MASTURBATION, AN ELEMENT OF THE OFFENSE OF PUBLIC INDECENCY, THERE MUST BE EVIDENCE OF MANUAL MANIPULATION OF GENITAL ORGANS FOR SEXUAL GRATIFICATION UNDER CIRCUMSTANCES THAT THE MANIPULATION IS LIKELY TO BE VIEWED BY OTHERS. OHIO REVISED CODE (A)(3). Appellant contends that Appellee failed to prove that he committed the offense of Public Indecency in violation of O.R.C (A)(3), a misdemeanor of the third degree. Appellant argues that the state failed to prove the element that Appellant engaged in masturbation. This argument is without merit. O.R.C (A)(3) provides as follows: (A) No person shall recklessly do any of the following under circumstances in which the person's conduct is likely to be viewed by and affront others who are in the person's physical proximity and who are not members of the person's household: (3) Engage in conduct that to an ordinary observer would appear to be sexual conduct or masturbation. O.R.C (A)(3). The Ohio Revised Code does not define the term "masturbation". Terms not defined by statute are to be given their common and ordinary meaning. The term "masturbation" is defined in The American Heritage Dictionary as "Excitation of one's own or another's genital organs, 8

12 usually to orgasm, by manual contact or means other than sexual intercourse."i Moreover, it has been held that masturbation is the stimulation or manipulation of genital organs. City of Columbus v. Heck (Nov. 9, 1999), 10`h Dist. No. 98AP (Emphasis added) In Heck, the court looked to various dictionary definitions in reaching its conclusion, including Webster's Ninth New Collegiate Dictionary (1991) 732, which defines "masturbation" as erotic stimulation of genital organs by manual or other bodily contact. Id. (Emphasis added) Applying the ordinary meaning of the term "masturbation", as found in The American Heritage Dictionary and in Heck supra, Appellant's conduct of exposing himself and grabbing his semi-erect penis constitutes masturbation. Thus, Appellee proved each and every element of the charge of Public Indecency. Donna Haller testified that Appellant sat on her couch, grasping his semi-erect penis, while asking her if she would perform oral sex on him. (Tr ) Clearly, under the definitions cited above, Appellant was engaging in masturbation by having bodily contact with his semi-erect penis. Obviously Appellant was seeking sexual arousal or gratification by this contact as evidenced by his semi-erect penis and his request for Donna Haller to perform oral sex on him. The Ninth District Court of Appeals correctly held that from the evidence that Appellant was grasping his semi-erect penis, it would appear to an ordinary observer that Appellant had stimulated his genital organs. Marrero supra. The court of appeals discounted Appellant's assertion that he was seeking sexual gratification through oral sex rather than through masturbation. I Dictionary.com. The American Heritage Dictionary of the English Language, Fourth Edition, 2006 Houghton Mijflin Company. 9

13 The court of appeals further concluded that Appellant's conduct of grasping his semierect penis while asking for oral sex was evidence that Appellant masturbated under circumstances in which his conduct was likely to be viewed by and affront others in his proximity. Furthermore, the mental state for public indecency is recklessly. O.R.C (A), Subsection three (3) requires proof that Appellant engaged in conduct that to an ordinary observer would appear to be sexual conduct or masturbation. Recklessly requires that one act with heedless indifference to the consequences and in perverse disregard of a known risk that the conduct is likely to cause a certain result or to be of a certain nature. O.R.C (C). In the present case, Appellant heedlessly disregarded a known risk that masturbating to semi-erection while Donna Haller was momentarily out of the room would result in conduct that to an ordinary observer would appear to be masturbation, under circumstances in which his conduct was likely to be viewed by and affront others. O.R.C (A)(3). Pursuant to Heck, Appellant engaged in masturbation by grasping his semi-erect penis and asking for oral sex. Appellant's conduct was likely to be viewed by and affront others where Haller had only momentarily left the room with the clear intent to return within seconds. Appellant heedlessly disregarded a known risk that Haller would return, observe him masturbating, and would likely be affronted. Appellant's second proposition of law is without merit and this Honorable Court should decline to accept jurisdiction of this case. 10

14 CONCLUSION For all the foregoing reasons the State of Ohio respectfully requests that this Honorable Court decline to accept jurisdiction of this case. By: PROOF OF SERVICE Respectfully submitted, DENNIS P. WILL Lorain County Prosecuting Attorney MARY R. SLANCZKA, # Assistant Prosecuting Attorney 225 Court Street, 3`a Floor Elyria, Ohio (440) This is to certify that a true and accurate copy of the foregoing Brief of Appellee was served upon Daniel Wightman, Attorney for Appellant, 158-A Lear Road, Avon Lake, Ohio 44012, by regular U.S. Mail this Y4A day of August, MARY RLANCZICA, # Assistant rosecuting Attorney 11