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IN THE COMMON PLEAS COURT OF FRANKLIN COUNTY, OHIO
CRIMINAL DIVISION

State of Ohio,
Plaintiff,
vs. Case 
Michael Davis, Judge Karen Phipps
Defendant.

MOTION SCREEN THE DEFENDANT
FOR ADMISSION CBCF RIVER CITY

 

 

Now comes the defendant, Michael Davis, by and through the undersigned counsel,

Terry K. Sherman, and hereby requests that he be immediately screened for acceptance to
the CBCF River City Intense Therapy Program. This request is in the interest ofjustice and
is supported by the attached Memorandum .

Respectfully submitted,

/s/Terry K. Sherman, #0002417

Attorney for Defendant

52 West Whittier Street

Columbus, OH 43206

Phone: 614/444-8800
E: tksbermaniavrt?ildmaiix?m

 

MEMORANDUM SUPPORT
INTRODUCTION:

The defendant, Michael Davis, who is 60 years of age, having never had criminal
contact with any local, state or federal law enforcement, is now before this Court pursuant
to a four count Indictment charging him with three counts of Pandering Sexually Oriented
Matter Involving a Minor, felonies of the 2nd degree, and one count of Possession of Sexually
Oriented Matter Involving a Minor, a felony of the 4th degree.

It is Mr. Davis? intent to enter guilty pleas to all four counts on the scheduled trial
date, January 30, 2020. Mr. Davis? offense behavior consists of acts of downloading images

from the Internet and emailing some of those images to himself alone. Mr. Davis? offense

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conduct consisted only of viewing these images. It is undisputed that Mr. Davis did not
create, distribute, or share these images. Furthermore, there is no indication Mr. Davis has
ever had any inappropriate contact with any minor children on any level.

The production allegation contained in the Indictment is solely linked to the technology
associated with images being downloaded from the Internet to a device belonging to
Mr. Davis, resulting in a copy being placed on Mr. Davis? devise?s memory.

As will be explained in greater detail in a Sentencing Memorandum with reports from
Dr. Jolie Brams and Olena Sowers, Licensed Professional Counselor, Mr. Davis suffered for
many years with numerous mental health issues, including severe depression and anxiety,
resulting in his attempted use of pornography to self-medicate. Since his arrest, Mr. Davis
has engaged fully and genuinely in intensive behavioral therapy for approximately four
months.

PURPOSES FELONY SENTENCING:

Pursuant to O.R.C. 

court that sentences an offender for a felony shall be guided by the

overriding purposes of felony sentencing. The overriding purposes of felony

sentencing are to protect the public from future crime by the offender and
others, to punish the offender, and to promote the effective rehabilitation of

the offender using the minimum sanctions that the court determines

accomplish those purposes without imposing an unnecessary burden on state

or local government resources. To achieve those purposes, the sentencing

court shall consider the need for incapacitating the offender, deterring the

offender and others from future crime, rehabilitating the offender, and making

restitution to the victim of the offense, the public, or both.?

After considering the purposes of felony sentencing pursuant to O.R.C. 
the Court then must turn to O.R.C. Subsection (B) states:

sentence imposed for a felony shall be reasonably calculated to achieve the

three overriding purposes of felony sentencing set forth in division (A) of this

section, commensurate with and not demeaning to the seriousness of the

offender?s conduct and its impact upon the victim, and consistent with
sentences imposed for similar crimes committed by similar offenders."

(Emphasis added.)

Defense counsel will address the purposes of sentencing in a Sentencing Memorandum

and at the time of sentencing. The purpose of the present Motion is only to take the initial

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step in screening Mr. Davis for acceptance to the CBCF River City Intense Therapy Program,
should the Court be so inclined to consider such a program at the time of sentencing.
Defense counsel has completed a review of Franklin County cases, discussed below, to
demonstrate that sentencing Mr. Davis to a program similar to CBCF River City would not be
inconsistent with sentences in similar cases.

SIMILAR CRIMES COMMITTED SIMILAR OFFENDERS:

 

 

A review of cases in Franklin County from October, 2012 to present reveals 253 cases
with similar charges to the instant case of F2 and F4 counts of pandering. Forty-four (44)
defendants (approximately 17%) received incarceration at ODRC and/or Twenty-nine
of the above forty-four defendants incarcerated included the following aggravating factors:
prior criminal offenses; a case involving additional felony charges; and/or the defendant was
specifically identified by the Court as either ?not amenable? to community control, nor a
suitable candidate for intensive behavioral therapy. Only fifteen (15) of the 253 defendants
were sentenced to a period of incarceration at ODRC or without any of the above-
mentioned aggravating factors (approximately 

209 of the 253 defendants (approximately 83%) in similar cases did not receive a
sentence that included incarceration at ODRC or The majority of cases with one or
more F2 counts, including several cases with as many as twelve F2 counts, were given plea
deals reducing the counts to one or two F2 guilty pleas. Sometimes the defendant was
allowed to plead to lower F3 or F4 charges. Defense counsel?s review indicates that the
overwhelming majority of the defendants who were sentenced as first time offenders in
Franklin County were placed on community control with intensive supervision for sexual
offenders for terms ranging between two to five years. All researched defendants were
placed on the tier II sex offender registry for 25 years.

Three specific cases are worthy of special mention:

1. Dean Worthington (18 CR 3565) was a police officer who was charged and pled to two

F2?s and one F4, was sentenced to 180 days at 90 days suspended in lieu of a
$5,000 fine, and five years of community control. Dean Worthington was caught

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actively trying to distribute child pornography. He used tumbler to share images with
others, along with nude pictures of himself.

2. Kevin Delancey (14 CR 4527) was charged with twelve F2's and twelve F4's. He pled
guilty to two F2's and received five years community control and intensive sex
offender therapy.

3. Nathan R. Eal (10 CR 1268) entered a no contest plea to ten counts of Pandering, F2,
and ten counts of Possession of Child Pornography, F4, and received community
control with intensive supervision for sexual offenders.

A number of Franklin Countyjudges have sentenced defendants in a way that suggests
they recognized that first time offenders convicted of Pandering Sexually Oriented Matters
Involving a Minor, whose behavior consisted solely ofdownloading and viewing images, were
amenable to rehabilitation, and by allowing them to participate in intensive behavioral

therapy, minimized the chances of their re-offending.

STATUTORY FRAMEWORK AND THE Loss DISTINCTION BETWEEN PANDERING QAND 

 

The felony 2's for which Mr. Davis is charged are consequence of his reproduction of
images from the Internet to his own electronic device. The single felony 4 charge is the
result of possessing unlawful images. Penalties for felonies of the 2nd degree carry with
them a presumption of incarceration, whereas felonies of the 4th degree favor community
control as the appropriate sanction. The distinction between ?reproduction? of images and
?possession of images? at the time the statutes were enacted were decidedly dissimilar.

When the pandering statute was enacted there was a significant divide between those
who merely possessed unlawful depictions of unlawful images versus those who knowingly
created or otherwise took part in the manufacture, reproduction and distribution of such
materials. These statutes were written at a time when such materials were made with a
camera and film and creating copies involved the making of physical copies of such pictures
from the photo negative. Distribution involved physically transferring the images from one
person to another. Thus, persons having mere possession of such images came into
possession of them as physical objects. Online downloading of images available on the web

is totally unlike the conduct which led to felony 2 enactments. Those involved in the latter

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production have a much greater criminal culpability since such defendants were directly and
physically involved with children and their victimization. Taking actual photographs while
being physically present and operating a camera requires an especially depraved state of
mind. The Ohio General Assembly?s decision to classify physical production and reproduction
as 2nd degree felonies with a more severe punishment speaks directly to the perceived harm
inflicted on children. Far less, though still serious, are those who merely possess such
images for their own personal use. Those persons had nothing to do with either the creation
or wider distribution of such materials. Because of this, the State of Ohio has chosen to
make the mere possession of such images a fourth degree felony. A felony of the 4th degree
carries with it a less severe punishment and a presumption in favor of community control,
rather than incarceration.

The era of film is over. Transfer of these images is no longer made of physical objects
in a hand-to-hand fashion in the presence of another person. Rather, electronic transfers are
made by downloading the digital images stored on one computer to another over the
Internet. Reproduction of the images by way of downloading, although it comes within the
statutory definition of ?production,? occurs in a way that was not originally contemplated by
the drafters of the pertinent statutes. Thus, the distinction in cases of downloading between
O.R.C. and in the digital electronic age no longer exists. Anyone
seeking merely to possess such images via a computer download has automatically and in
many cases unknowingly ?produced? child pornography. As such, these days nearly every
person seeking only possession finds himself charged with and convicted ofthe more serious
crime of ?production.?

While Mr. Davis intends to admit his legal and moral guilt to ?producing? child
pornography, in violation of O.R.C. ?2907.322, the fact remains he never sought to make his
own child pornography. He did not recruit underage persons nor photograph any of them.
His downloading child pornography came from the ?open? web, not the ?dark? web. All

Mr. Davis? actions were consistent only with someone seeking to possess images that have

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already been made. Had he purposely made copies of these images for the purpose of
distributing them to others, that would be a different case; but that is not the case in this
matter. The fact that such materials were ?produced? on his own hard drive was an
inevitable aspect of the way digital electronic items are downloaded. He collected child
pornography, nothing more.

STATUTORY PURPOSE FELONY SENTENCING INCLUDES REHABILITATING EOFFENDER,
O.R.C. 

 

 

 

According to several mental health specialists, Mr. Davis suffers from serious long-
term mental health issues, including but not limited to severe depression, anxiety,
compulsive hoarding behaviors, memory loss, and emotional isolation. Dr. Jolie Brams?
report, which will be submitted separately, outlines in detail the long-term mental health
issues with which Mr. Davis has been struggling. As a result of his conditions, he has been
self-medicating by compulsively collecting images without specific memory of what he was
collecting, resulting in many repeats of what he already had. As a consequence of Mr. Davis?
compulsive addiction, he was unable to monitor himself. As Dr. Brams? report concludes,
Mr. Davis is amenable to rehabilitation in the form of intensive behavioral therapy.
Dr. Brams? conclusion is based in part on the fact that Mr. Davis, immediately after his arrest,
immersed himself in intense counseling and rehabilitative therapy, including the following:
1. Columbus Springs/Dublin Springs:

Mr. Davis was originally admitted as an inpatient for six days; thereafter he was
placed in a partial hospitalization program. This program met daily from 8:00 AM to 4:00 PM
for fifteen days straight, not including weekends. It was intense group therapy, which
attempted to stabilize and deal with anxieties, and consisted of very aggressive group
participation, focusing on suicide prevention.

2. Olena Sowers, Licensed Professional Counselor/Blue Boat Counsel in Worthington:

The Sowers? report will be provided separately. Mr. Davis has been attending

individual sessions two to three times per week. Mr. Davis is also attending

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group therapy for individuals with similar difficulties.
3. Mahmoud El-Said Shehata, MD, Services:

Mr. Davis is presently receiving outpatient services from Dr. Shehata, at
Upper Arlington Behavioral Health.

CONCLUSION:

Mr. Davis has experienced long-term mental health conditions which contributed
directly to his illegal, antisocial, and unlawful collection of child pornography. Since his arrest
he has genuinely and meaningfully engaged in intensive behavioral therapy with local
counselors in Franklin County. His progress is positive and he has conducted himself at all
times lawfully, sincerely, and remorsefully.

WHEREFORE, counsel respectfully requests this Honorable Court permit the defendant
to screen for acceptance to CBCF River City for the following reasons:

1. Mr. Davis is meaningfully engaged in an ongoing intensive behavioral therapy with

Olena Sowers; and
2. It is in the interest ofjustice to continue intensive behavioral treatment inasmuch as

Mr. Davis has never engaged in any predatory behavior and certainly is no threat to

the community.

/s/Terry K. Sherman, #0002417
Attorney for Defendant

CERTIFICATE SERVICE
The undersigned certifies that on this 23rd day of January, 2020, a copy of the
foregoing was filed electronically. Notice of this filing will be sent to the Franklin County
Prosecutor's Office by operation of the Court's electronic filing system.

/s/Terry K. Sherman, #0002417
Attorney for Defendant