Ohio v. Marquand, 2014 WL 811793 (Ohio App. 8 Dist.), February 2014

Facts:  Marquand posted a craigslist add looking for “younger girls for fun.”  An ICAC investigator responded to the add with an email, asking what age and what is your age limit?  Appellant replied that he “had no limit.”  The ICAC investigator posed as a father of 12 and 14 year old girls.  After emails and google chats back and forth, Appellant stated that he wanted to perform “oral on them both.” Have them “try” oral on him.  He also wanted to “try and have sex” with the 14 year old and see if it was “possible” with the 12 year old.  Appellant traveled from Flint, MI to Cleveland OH to the hotel meet-up.  Whereupon he was arrested.  He was charged, inter alia, with attempted rape of both fictitious girls.  There were several assignments of error, but we will only discuss the admission of CP as “other acts evidence” here.

Attack on 403 and 404 Grounds:  The Government seized appellant’s cell phone and computer.  There was evidence of CP as well as activity by appellant on teen and preteen dating sites.

Law: The admission of other-acts evidence lies within the broad discretion of the trial court, and a reviewing court should not disturb evidentiary decisions in the absence of an abuse of discretion that created material prejudice. State v. Morris, 132 Ohio St.3d 337, 2012–Ohio–2407, 972 N.E.2d 528, 14, citing State v. Diar, 120 Ohio St.3d 460, 2008–Ohio–6266, 900 N.E.2d 565.  In determining whether to permit other- acts evidence to be admitted, trial courts should conduct the three-step analysis set forth in State v. Williams, 134 Ohio St.3d 521, 2012–Ohio–5695, 983 N.E.2d 1278:(1) determine if the other-acts evidence “is relevant to making any fact that is of consequence to the determination of the action more or less probable than it would be without the evidence” under Evid.R. 401; (2) determine if the otheracts evidence “is presented to prove the character of the accused in order to show activity in conformity therewith or whether the other-acts evidence is presented for a legitimate purpose, such as those stated in Evid.R. 404(B)”; and (3) consider “whether the probative value of the other-acts evidence is substantially outweighed by the danger of unfair prejudice.” Id. at  20.

Analysis:  Appellant argued that he was entrapped, and beyond that…he had no interest in preteen girls as evidenced by his ad on Cragistlist which just said “young.” “Thus, in considering the first two parts of the Williams test, the other-acts evidence was relevant to making facts that were of consequence to the matter more probable than without the evidence. Further, the other-acts evidence was submitted for a proper Evid.R. 404(B) purpose—proving Marquand’s motive and intent…We agree with Marquand that this other-acts evidence is highly inflammatory. But in considering the third part of the Williams test, where we must weigh the probative value of the other-acts evidence with the prejudicial effect of the evidence, we find that the probative value of the evidence “is substantially outweighed by the danger of unfair prejudice.” Id. at 20.


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