IN THE SUPREME COURT OF OHIO

STATE OF OHIO, . Case Number 09-0860

Appellant/Cross-Appellee, . On Appeal from the Richland County Court of Appeals, V. Fifth Appellate District

RICHARD LEE WOLF, . Court of Appeals Case No. 2008-CA-0016 Appellee/Cross-Appell ant.

APPELLANT/CROSS-APPELLEE, STATE OF OHIO'S MEMORANDUM IN OPPOSITION TO JURISDICTION OVER CROSS-APPEAL

JAMES J. MAYER, JR. PROSECUTING ATTORNEY RICHLAND COUNTY, OHIO

BY: Kirsten L. Pscholka-Gartner (Reg. No. 0077792) (COUNSEL OF RECORD) Assistant Prosecuting Attorney Richland County, Ohio 38 South Park Street Mansfield, Ohio 44902 (419) 774-5676 (419) 774-5589-Fax

COUNSEL FOR APPELLANT/CROSS-APPELLEE, STATE OF OHIO

David D. Carto (Reg. No. 0021632) Weldon, Huston & Keyser, L.L.P. 28 Park Avenue West Mansfield, Ohio 44902 (419) 524-9811 (419) 522-5758-Fax

COUNSEL FOR APPELLEE/CROSS-APPELLANT, RICHARD LEE WOLF FRED Jul. 027009 CLERK OF COURT SUPREME COURT OF OHIO EXPLANATION OF WHY THE ISSUES RAISED IN CROSS-APPEAL ARE NOT OF PUBLIC OR GREAT GENERAL INTEREST AND INVOLVES A SUBSTANTIAL CONSTITUTIONAL OUESTION

On May 11, 2009, the State of Ohio sought leave to appeal the Fifth District Court of Appeals reversal of the Appellee, Richard Lee Wolf's conviction for theft in office.

The Appellee, (hereinafter "Cross-Appellant"), has now filed a cross-appeal challenging the Fifth District's decision to uphold his convictions for theft in office and unauthorized access to a computer.

The Cross-Appellant attempts to argue that the legislature did not intend to criminalize behavior such as the behavior in this case which led to his convictions for solicitation and unauthorized access to a computer. However, the State submits that the

Cross-Appellant's actions in soliciting the services of a dominatrix named Mistress

Patrice to obtain sexual gratification for payment, and his actions using computers and internet service belonging to the City of Shelby in order to upload nude photographs of himself, solicit the services of a dominatrix, and view pornography, clearly constitutes the crimes of solicitation and unauthorized access to a computer as defined by the Ohio

Legislature.

The Appellant has been found guilty of these crimes by a jury, and, after a thorough review of the evidence, the Fifth District Court of Appeals upheld those convictions. Therefore, further review by this Court is not warranted.

1 ARGUMENT IN SUPPORT OF PROPOSITIONS OF LAW

Response to Cross-Appellant's Proposition of Law No. I: The State presented sufficient evidence to convict the Cross-Appellant of solicitation under R.C. 2907.24(A).

Contrary to the Cross-Appellant's claims, the State did present sufficient evidence of that the Appellant solicited sexual conduct or contact to convict him of solicitation beyond a reasonable doubt.

Solicitation, as defined in R.C. 2907.24(A), provides, "[n]o person shall solicit another to engage with such other person in sexual activity for hire." The term sexual activity is defined in R.C. 2907.01(C) as "* * * sexual conduct or sexual contact, or both." "`Sexual conduct' means vaginal intercourse between male and female; anal intercourse, fellatio, and cunnilingus between persons regardless of sex; and, without privilege to do so, the insertion, however slight, of any part of the body or any instrument, apparatus, or other object into the vaginal or anal opening of another.

Penetration, however slight is sufficient to complete vaginal or anal intercourse." R.C.

2907.01(A). "`Sexual contact' means any touching of an erogenous zone of another, including without limitation the thigh, genitals, buttock, pubic region, or, if the person is a female, a breast, for the purpose of sexually arousing or gratifying either person." R.C.

2907.01(B).

During the Cross-Appellant's trial, the State presented sufficient evidence that the

Appellant solicited, at the very least, sexual contact for hire. Through the testimony of

Detective Dollison, who conducted the forensic examination of the computer's hard drive, the State presented the following excerpts from a document containing e-mail correspondence between Cross-Appellant and Mistress Patrice:

2 rlbond 52 an,vahoo.cona: ". .. First off, thank you for talcing the time to remember me. I have yet to be at the mercy of a true dom mistress. You are incredibly seductive, and I would love for you to be the first one to `break me in.' We are talking `light stuff here, OK! Also, I have never been involved in any monetary transactions or arrangements. .. so this is all new to me. Obviously I would be with you for at least an hour, but I would prefer to be with you for at (sic) 2 hrs, contingent on your discount. Is it possible to spend the last half hour or so being your lover? Whatever is possible, please let me know. I look forward to hearing from you again. Have a great weekend. Rick."

(Excerpt from State's Exhibit 8 which was admitted at trial); See also, (T. 175).

On cross-examination, the following excerpt was also read to the jury:

[email protected]: "I do not have sex with my slaves. If you are interested in a bdsm session only then that can be arranged. But no sex. I would give you a two hour session for 175., the regular rate is 150 per hour for light domination."

(T. 176-177).

While the State did not present the entire e-mail communication through trial testimony, State's Exhibit 8 was admitted into evidence and was available for the jury's review. That exibit also contained the following correspondence from the Cross-

Appellant in response to Mistress Patrice's e-mail:

rlbond 52(cdvahoo.com: "Hi Mistress Patrice, I appreciate you keeping me in mind, and also for the very generous offer. Presently I have a lot of financial issues on my plate and as much as I would love to be with you now, I cannot. May I contact you in the future when things turn around? Ok, no sex... but I do get to climax though, right? Rick."

(Excerpt from State's Exhibit 8).

It was the Cross-Appellant's e-mail that convicted him. He wrote that he had yet to have been at the mercy of a "true dom mistress," that he would love for her to be the first one to "break him in," that's he had "never been involved in any monetary transactions, so this was all new to him," that he would love to "be with her" for at least

3 an hour, but would prefer to be with her for at least two hours, contingent upon her

"discount," and that he would like to spend the last half hour or so "being her lover." In the later e-mail, he asks if he gets to "climax." These e-mails speaks for themselves and the jury was in a position to use their common sense and life experience in interpreting whether "being broken in" by a dominatrix or "being one's lover," in the vernacular, involves some type of intercourse, sexual penetration, or touching of the parts of the human body for the purpose of sexual arousal or gratification. There was no need for the prosecution to put on evidence, expert or otherwise, as the Cross-Appellant advocates, to explain the highly graphic e-mail.

In reviewing the evidence, the Fifth District noted that some of the terms in the e- mails, such as "mistress," "bdsm session" "lover" and "climax" were not defined.

However, the court noted that in the context of the e-mails "Mistress has a connotation beyond the formal and traditional introduction of a woman in a formal setting. When placed in the context of the e-mail communications referencing sessions of domination, etc. the word takes on a different connotation." State v. Wolf (5t" Dist.), 2009 Ohio 2018,

2009 Ohio App. LEXIS 1677 at ¶40.

Likewise, the court noted that while the term "lover" has many connotations, "in this case the question becomes could a juror reasonably draw the inference of a sexual relationship as defined in the Ohio Revised Code?" Id. at ¶41. When viewed in the context of the entire conversation contained in State's Exhibit 8, the answer is yes. In response to this inquiry, Mistress Patrice indicated that she "does not have sex with her slaves." (T. 176-177).

4 The reference to the term "lovers" also helps clarify the meaning of the term

"climax" in the Cross-Appellant's final e-mail. The Fifth District stated, "The term

"climax" has the meaning of finishing or completing. In the context of the e-mails this could be understood to mean ejaculation at the completion of a sexual session." Id.

The Fifth District stated that the most difficult term to apply meaning to is the acronym "bdsm." "It would be hard to determine what meaning or understanding any individual might attach to that term. It is this Court's understanding that "bdsm" is a complex acronym derived from the terms bondage and discipline, dominance and submission, sadism and masochism. The question is: without additional explanation, could a juror reasonably apply a sexual connotation to that acronym." Id. at ¶42. Once again, the State submits that the answer is yes, when the term is viewed in the context of the entire e-mail conversation.

Jurors could glean the meaning of the term from the Appellant's reference to being at the mercy of a "dom mistress," and her "breaking him in," as well as his request for only "light stuff." (T. 175). The meaning is furfher clarified by Mistress Patrice's statement about her "slaves" in the same e-mail that "bdsm" is used. (T. 176-177). When these e-mails are viewed in their entirety, a reasonably intelligent juror could discem that the term "bdsm" meant domination in a sexual manner.

Based upon the foregoing, the Fifth District held that the jurors could determine from the context of the e-mails, as well as the Cross-Appellant's actions of posting nude photos of himself for "online dating" and viewing pornographic websites, that he was soliciting sex. Id. at ¶43. Therefore, they did not err in convicting him of solicitation in violation of R.C. 2907.24(A).

5 Response to Cross-Appellant's Proposition of Law No. II: The Appellant's conviction for unauthorized access to a computer in violation of R.C. 2913.04(B).

Contrary to Cross-Appellant's claim, the State submits that the Appellant's conduct was included within the Ohio Legislature's intent in passing R.C. 2913.04. The

City of Shelby, as a political subdivision of this state which is supported by taxpayer dollars, clearly did not authorize the Cross-Appellant to use its computers and internet services to upload nude photographs of himself, solicit the services of a dominatrix, or view pornography.

R.C. 2913.04(B) provides, in pertinent part:

"No person, in any manner and by any means, including but not limited to, computer hacking, shall knowingly gain access to, attempt to gain access to, or cause access to be gained to any computer, computer system, computer network, cable service, cable system, telecommunications device, telecommunications service, or information service without the consent of, or beyond the scope of the express or implied consent of, the owner of the computer, computer system, computer networlc, cable service, cable system, telecommunications device, telecommunications service, or information service or other person authorized to give consent."

R.C. 2913.04 (2009).

The Cross-Appellant claims that the City of Shelby had no express or even

implied internet usage policy which would have prevented him from using the internet to

access adult intemet sites, upload nude photographs of himself, and solicit prostitution. In

support, the Cross-Appellant argues that because his access to the computer was not

limited by passwords, firewalls, or directives on the scope of his use, he did not act

outside the scope of the authorization, and thus cannot be found guilty of unauthorized

access of a computer. The Cross-Appellant further claims that there was no evidence that

the infonnation being viewed, transmitted, or received by the appellant was itself illegal

6 or prohibited in any manner. He basically claims that the State's case was based solely upon the content of the appellant's activities, and that the State, the trial court, and the

Fifth District simply "presumed" that his conduct was improper and/or unlawful.

The Cross-Appellant blatantly disregards the fact that he was convicted for soliciting prostitution, a third degree misdemeanor, during his work hours by e-mailing a

Mistress Patrice Burgess. That he was convicted of soliciting prostitution on his work computer clearly demonstrates that the Cross-Appellant was acting outside the scope of his authorization to use the computer. It is axiomatic that the City of Shelby does not authorize employees to solicit prostitution while on the job, nor would the City allow employees to engage in other criminal conduct while working. The State offered

sufficient evidence to find that the Cross-Appellant exceeded the scope of the City's

implied consent to use the computer and intemet. The Cross-Appellant claims that the

State presented its case of implicit authority based only upon the content of his activities,

all of which were legal (except, of course, his soliciting prostitution). While the fact that

he used his work computer to upload nude pictures of himself to adult dating web sites

and to request sexual encounters, some for hire, is certainly relevant in considering

whether the City of Shelby gave him implicit authority to do so, the State also presented

evidence of the sheer volume of time wasted while engaging in such activity.

The trial court appropriately noted that the issue of implied consent is one of

degree; while one would not be prosecuted for calling his wife to checlc up on her while

at work, a jury could certainly consider whether using hundreds of work hours to access

such internet sites would fall out of the implied consent of the City of Shelby. (Tr. 185).

7 The matter of implied consent was rightly decided by the jury; the jury must assume what conduct is appropriate, thus implicitly authorized, under specific circumstances.

By the Cross-Appellant's own admission, he accessed such sites and engaged in such activity for hundreds of hours. (T. 147). Corroborative of such activity, the enormous volume of pictures accumulated during this time period - although not displayed in the courtroom - were entered into evidence. (T. 94-96, 156-158, 182).

hi summation, the Cross-Appellant essentially argues that the City authorized him, while on the job, to solicit prostitution, a criminal offense, and, in addition, the City authorized him to upload nude photographs of himself and use the internet to access pornographic internet sites for over 100 hours. Such an argument flies in the face of common sense. It was properly within the jury's province to consider whether such conduct to such a degree was implicitly authorized by the City of Shelby.

CONCLUSION

For the foregoing reasons, the State of Ohio respectfully requests that this Court deny Appellee/Cross-Appellant jurisdiction over the two claims raised in his cross- appeal.

Respectfully Submitted,

Kirsten L. Pscholka-Gartner'(0077792) Assistant Prosecuting Attorney Richland County, Ohio 38 South Park Street Mansfield, Ohio 44902 (419) 774-5676

Counsel for Appellant, State of Ohio

8 CERTIFICATE OF SERVICE

I hereby certify that a true copy of the foregoing Memorandum in Opposition to Jurisdiction Over Cross-Ap peal,^ was served on Attorney David D. Carto via counsel's courthouse mailbox this ^'day of June, 2009.

irsten L. Pscholka-Gartner (01077792) Assistant Prosecuting Attomey Richland County, Ohio

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