A man convicted of luring a 17-year-old girl to have sex with him by impersonating a police officer is entitled to a new trial, and convictions for child enticement dropped because the law was ruled unconstitutional, an appeals court decided last week.

The First District Court of Appeals said prosecutors improperly used testimony from another woman assaulted by Ray Cobia in a similar pattern in his trial for the rape and sexual battery of the teen. The appeals court also ruled on Jan. 30 that charges of child enticement must be discharged because the Ohio Supreme Court struck down the statute as unconstitutional in 2014 while Cobia’s appeal was pending.

In July 2013, Cobia and the teen met on a telephone chat line typically used by those wishing to exchange money for sex. Cobia arrived at the girl’s Cincinnati apartment, which was divided with two separate entrances. The girl was alone on one side, while her mother, brother and 1-year-old son were on the other. The two had a disagreement on the price for sex and at trial the girl testified that Cobia flashed something that looked like a badge and told her he was a police officer. He made a gesture that insinuated he had a gun in the car, and she said out of concerns for the safety of her family, she agreed to have sex with Cobia without him paying.

After he left her apartment, the girl called Cobia to question the encounter and he responded that she was going to be arrested for prostitution, she testified. At that point she reported to police that she was raped. Cobia was also accused of trying to lure a 13-year-old girl into his car telling her he was a law enforcement officer.

Cobia was indicted for one count of impersonating a police officer, two counts of rape, two counts of sexual battery, and two counts of child endangerment. At trial, Cobia’s attorney was able to draw out several inconsistencies made by the teen in her account of the rape.

Another woman, who was assaulted by Cobia in 2004, testified in the trial that she accepted a ride from him from a bus stop and that they discussed exchanging sex for money. He then told her he was a probation officer and threatened her with arrest for prostitution unless she agreed to have sex with him. Cobia was charged with rape, kidnapping, sexual battery, robbery and impersonating a police officer. While the woman testified he had been convicted of rape, the defense counsel noted the record points only to the conviction of sexual battery and impersonating a police officer.

In the case with the teens, Cobia pled guilty to the two counts of child enticement, and was found guilty on one count each of sexual battery and impersonating a police officer. He was sentenced to seven and a half years in prison. He appealed his conviction for a number of reasons including challenging the constitutionality of the child enticement law and allowing the victim of the 2004 assault to testify in his 2013 case.

Writing for the First District, Judge R. Patrick DeWine determined the child enticement charges against Cobia must be discharged because in March 2014, the Ohio Supreme Court struck down the enticement statute. The ruling in State v. Romage found R.C. 2905.05(A) was unconstitutionally overbroad. The law bars a person from knowingly soliciting, coaxing, enticing, or luring a child under age 14 to accompany the person in any manner without the permission of the parent or legal custodian. (The law includes exceptions for law enforcement, medics, firefighters, and others.)

“On the authority of Romage, we reverse Mr. Cobia’s child enticement convictions and order that he be discharged on the offenses,” Judge DeWine wrote.

The appeals court then determined the testimony of the woman assaulted in 2004 was improperly introduced under the “other acts of evidence” rule that allows information about past convictions in certain circumstances. Prosecutors argued the evidence of the 2004 act was admissible because it showed a pattern of conduct that was so similar it created a ‘behavioral fingerprint” establishing him as the perpetrator of the 2013 crime.

The appeals court disagreed. It said there was no question about Cobia’s identity, but rather the jury was deciding whether to believe his claim that the sex was consensual and not rape or battery. The court also rejected the state’s contention that the prior incident could be used to prove Cobia’s motive. Judge DeWine wrote that to use other-acts evidence to establish motive, the prosecution has to show why the accused has a specific reason to commit the crime.

“Thus, if the state argues that a defendant committed murder to cover up an earlier crime, evidence of the earlier crime may be admitted to show the motive behind the murder,” Judge DeWine explained. “But here the evidence of the 2004 crime didn’t suggest a motive or intent for the alleged crime in 2013 – it didn’t show why he might have committed the crime; it simply showed that he had committed a similar crime in the past.”

The court noted it had to weigh the impact of the wrongly admitted testimony of the 2004 case against all the other evidence introduced in the case. “The case against Mr. Cobia depended entirely on the testimony of the victim, and her credibility was significantly undermined at trial. Therefore, we cannot say the evidence concerning Mr. Cobia’s 2004 offenses did not impact the jury’s verdicts, or that without the other-acts evidence, the evidence of his guilt was strong,” Judge DeWine wrote.

The court sent the matter back to Hamilton County Common Pleas Court for a new trial.

Judges Penelope R. Cunningham and Sylvia Sieve Hendon concurred in the decision.

State v. Cobia 2015-Ohio-331
Opinion: http://sc.ohio.gov/rod/docs/pdf/1/2015/2015-ohio-331.pdf
Criminal Appeal From: Hamilton County Court of Common Pleas
Judgment Appealed From Is: Reversed
Date of Judgment Entry on Appeal: Jan. 30, 2015

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