[Cite as State v. Yerra, 2016-Ohio-632.]


STATE OF OHIO                      )                IN THE COURT OF APPEALS
                                   )ss:             NINTH JUDICIAL DISTRICT
COUNTY OF LORAIN                   )

STATE OF OHIO                                       C.A. No.       14CA010625

        Appellee

        v.                                          APPEAL FROM JUDGMENT
                                                    ENTERED IN THE
KISHORE K. YERRA                                    COURT OF COMMON PLEAS
                                                    COUNTY OF LORAIN, OHIO
        Appellant                                   CASE No.   13CR086827

                                  DECISION AND JOURNAL ENTRY

Dated: February 22, 2016



        SCHAFER, Judge.

        {¶1}     Defendant-Appellant, Kishore Yerra, appeals the judgment of the Lorain County

Court of Common Pleas convicting him on three counts of importuning and sentencing him to a

three-year term of community control sanctions. For the reasons that follow, we affirm the trial

court’s judgment.

                                               I.

        {¶2}     The Lorain County Grand Jury indicted Yerra on four counts of importuning in

violation of R.C. 2907.07(D)(2), a felony of the fifth degree. The indictment arose from a series

of online conversations that occurred via an Internet chat room between Yerra, who called

himself “Sam,” and Lorain County Sherriff Detective Dave Lottman, who posed as a 13-year old

female named “Lisa.” After exchanging basic information, the conversations turned sexual and

graphic in nature with “Sam” describing various sex acts that he wanted to perform on “Lisa.”

These conversations occurred during a span of approximately four months after which police
                                                 2


discovered that “Sam” was Yerra. When police arrested Yerra and questioned him, he denied

knowing who “Lisa” was at first. However, later in the interview, Yerra admitted to engaging in

the online conversations and that they were sexual in nature. However, Yerra asserted that he

thought the person he was conversing with was an adult male posing as a young girl.

       {¶3}    Yerra waived his right to a jury trial and the matter proceeded to a bench trial.

After receiving evidence, the trial court found Yerra guilty of three counts of importuning. In

doing so, it specifically outlined the following regarding Yerra’s mental state during the online

conversations with “Lisa”:

       This [c]ourt has reviewed the transcript in its entirety and notes that [Yerra] on ten
       (10) separate dates engaged in online chats with the officer posing as a 13 year
       old girl. On many dates there were multiple chats on each date. * * * During
       [those chats, Yerra] was informed that the person on the other side of the chat was
       a 13 year old girl. Furthermore, the Defendant, when referring to the area beneath
       his chat mate’s panties asked if she was “familiar with a razor yet?” [and] on
       another occasion he indicated that you are so young, so tender” and on another
       date asked “do you want to be a kid with me or treated like an adult?” Another
       time [Yerra] stated “I wish you were an adult.” [Yerra] called his chat mate “my
       13 year old baby.” * * *
               Based on these comments from [Yerra] and a review of the all the
       evidence this court concludes that if [Yerra] did not believe that his chat mate was
       older than 13 but less than 16, then he acted recklessly with respect to his conduct
       on this issue.

The trial court subsequently imposed a three-year term of community control sanctions.1 Yerra

filed a motion for delayed appeal, which this Court granted, and he has presented one assignment

of error for our review.




       1
         After Yerra’s conviction and imposition of sentence, he was deported to Delhi, India.
Due to his deportation, the Adult Parole Authority requested that the trial court terminate Yerra’s
community control sanctions, which it has done.
                                                 3


                                                II.

                                      Assignment of Error

       Appellant’s convictions for importuning were against the manifest weight of
       the evidence in violation of Article IV, Section 3, of the Ohio Constitution.

       {¶4}    In his sole assignment of error, Yerra contends that his convictions are against the

manifest weight of the evidence. Specifically, he argues that it was against the manifest weight

of the evidence to find that he believed “Lisa” was actually a 13-year old female or was reckless

in that regard. We disagree.

       {¶5}    When considering a manifest weight of the evidence challenge, we must review

the whole record, “weigh the evidence and all reasonable inferences, consider the credibility of

witnesses and determine whether, in resolving conflicts in the evidence, the trier of fact clearly

lost its way and created such a manifest miscarriage of justice that the conviction must be

reversed and a new trial ordered.” State v. Otten, 33 Ohio App.3d 339, 340 (9th Dist.1986).

Reviewing courts are cautioned to only reverse a conviction on manifest weight grounds “in

exceptional cases,” State v. Carson, 9th Dist. Summit No. 26900, 2013-Ohio-5785, ¶ 32, citing

Otten at 340, where the evidence “weighs heavily against the conviction,” State v. Thompkins, 78

Ohio St.3d 380, 387 (1997).

       {¶6}    Yerra was convicted pursuant to R.C. 2907.07(D)(2), which relevantly provides

as follows:

       No person shall solicit another by means of a telecommunications device * * * to
       engage in sexual activity when the offender is eighteen years of age or older and *
       * * [t]he other person is a law enforcement officer posing as a person who is
       thirteen years of age or older but less than sixteen years of age, [and] the offender
       believes that the other person is thirteen years of age or older but less than sixteen
       years of age or is reckless in that regard[.]
                                                4


Former R.C. 2901.22(C) stated that “[a] person is reckless with respect to circumstances when,

with heedless indifference to the consequences, he perversely disregards a known risk that such

circumstances are likely to exist.”2

       {¶7}    Since Yerra’s challenge to his convictions is based on his belief regarding

“Lisa’s” age, we must consider his subjective state of mind.        See State v. Weir, 2d Dist.

Montgomery No. 22052, 2007-Ohio-6671, ¶ 17. “State of mind can be proved in two ways:

through the person’s own admission that he or she harbored the state of mind concerned, which

is direct evidence of that proposition, or by circumstantial evidence of an objective nature from

which the state of mind reasonably may be inferred.” Id. When considering the evidence

offered in this matter, we must be “mindful that direct and circumstantial evidence are of equal

probative value[.]” State v. Spikes, 9th Dist. Lorain No. 05CA008680, 2006-Ohio-1822, ¶ 21,

citing State v. Jenks, 61 Ohio St.3d 259, 259 (1991).

       {¶8}    Detective Lottman testified at trial that he, posing as “Lisa,” told Yerra within a

minute of the Internet chat’s initiation that “Lisa” was only 13 years old. He further explained

that Yerra asked a variety of questions regarding “Lisa’s” mother, who she described as

controlling, and her schoolwork.        Detective Lottman also indicated that Yerra never

communicated a belief that “Lisa” was actually older than 13 years old:

       Q:      Did Mr. Yerra ever ask you or challenge you on your age?

       A:      Not that I recall.

The State offered into evidence two pictures that Detective Lottman sent to Yerra of “Lisa.”

Detective Lottman said that these pictures were provided by a Sheriff Deputy auxiliary who


       2
          2014 Am.S.B. No. 361, effective March 23, 2015, amended R.C. 2901.22’s definition
of recklessness. Since the charged offenses in this matter occurred before Am.S.B. 361’s
effective date, we rely on the previous statutory definition of recklessness.
                                                   5


consented to their use for this purpose. The pictures were of the auxiliary when she was 13 years

old.

       {¶9}      The State also offered the transcripts of the online conversations into evidence.

The transcripts are replete with references to “Lisa’s” age and Yerra’s acknowledgment of her

age. They reflect that “Lisa” told Yerra that she was 13 years old within a minute of the first

chat’s initiation, which is consistent with Detective Lottman’s testimony on this point. In their

second chat three days later, Yerra asked, “but how old are you again?” to which “Lisa” again

stated “13.” After receiving the pictures of “Lisa,” Yerra remarked “you need to do a lot of

developing” and “you are not a woman yet.” After the conversations turned sexual in nature,

Yerra stated, “i [sic] wish the age difference will go away,” and that “you [Lisa] are so young.”

Indeed, Yerra acknowledged on two occasions that “Lisa” was not of “legal age” and that

consummating the sex acts that he described during the conversations would put him “behind

bars.” And, due to their age difference, Yerra suggested to “Lisa” that if they ever met in person,

they would have to meet somewhere in private so as to avoid detection by the public.

       {¶10} Yerra points out that he testified as follows regarding his state of mind during the

conversations:

       Q:     Now, Deputy Lottman indicated early on in the conversation that he was a
       13-year old girl?

       A:        Right.

       Q:        What was your reaction to that?

       A:      I did not believe that. That’s the reason why I actually asked the age the
       next day. Once again, I could not believe that a 13-year old could get into the
       chat room like that.

       Q:     In the course of your conversation with Deputy Lottman, did you ever
       believe that you – that he was actually a 13-year old girl?
                                                  6


       A:      Based on the nature of the – based on the conversation that what we’re
       taught, I always doubted that it was a 13-year old. I always thought that it was
       somebody much older and probably a male.

Yerra further testified that he was in an “adults-only” chat room when he initiated the contacted

with “Lisa” and did not expect a young child to be allowed into the chat room. Based on this

evidence in the record, Yerra contends that he was “merely engaging in fictional, unrealistic, and

at times repulsive, conversation about sexual acts between adults and minors” with an individual

he believed was an adult who was just purporting to be 13 years old.

       {¶11} When considering Yerra’s testimony, we first note that “the mere fact that [a

defendant] offered his own self-serving contradictory testimony does not support a reversal on

manifest weight grounds since the trier of fact is free to believe all, part, or none of the testimony

of each witness.” (Internal quotations and citations omitted.) State v. Johnson, 9th Dist. Lorain

No. 13CA010496, 2015-Ohio-1689, ¶ 15. We see no reason to depart from this axiom in this

matter since a review of the entire transcript of the online conversations does not support Yerra’s

assertions regarding his state of mind. Rather, the transcript reflects that Yerra was informed

multiple times of “Lisa’s” age and that he subsequently referred to their age gap on multiple

occasions as well as the legal ramifications of actually consummating the sexual acts that he

described.

       {¶12} Moreover, Yerra did not only engage in sex-driven conversations with “Lisa,” as

he argues on appeal. He also offered advice on how she should behave with her mother on

multiple occasions. For instance, the following exchange occurred after “Lisa” described an

argument that she was having with her mother:
                                                7


       [Yerra]:        be a puppy3 and say sorry to her [Lisa’s mother] for being a kid * *
       * i [sic] would really love it if you patched up with her now * * * i [sic] know you
       hate this now . . but you will thank me later * * *

       [“Lisa”]:       i [sic] do hate it

       [Yerra]:       i [sic] really really really really mean it * * * Lisa, whatever it is
       between us . . i [sic] want to, at the end of the day, be the best human you ever
       possibly can be

Additionally, Yerra offered advice on how “Lisa” should treat her father and how to handle her

parents’ divorce.    These paternalistic messages suggest that Yerra believed that his online

conversations were more than “fictional, unrealistic” conversations about sex with an adult male

who was merely posing as a female child.

       {¶13} Finally, the cross-examination of Yerra effectively reduced the credibility of his

assertions. Yerra acknowledged that he could not point to “anywhere [in the transcript] where

[he] say[s], ‘Hey, you know what? I don’t really believe you’re 13 years old. I believe you’re an

adult male[.]’” The following exchange also occurred regarding Detective Lottman’s interview

of Yerra:

       Q:     Now, when you first met with Detective Lottman here, that was [at
       Yerra’s place of employment], correct?

       A:     Yes.

       Q:     And he read you your Miranda rights?

       A:     Yes.

       Q:     Okay. And he asked you about Lisa and all of that stuff, right?

       A:     Yes.

       Q:     And you said, no, you don’t know anybody by that name, correct?


       3
         Yerra used multiple pet names for “Lisa,” including “baby,” “kiddo,” and “puppy,” all
of which connote an understanding that “Lisa” was a child.
                                                 8


       A:      Correct.

       Q:      So you lied to him, right? Yes or no.

       A:      Yes.

In light of these acknowledgments on cross-examination, we cannot second-guess on appeal the

trial court’s determination that Yerra’s assertions lacked credibility. See State v. Jacobs, 9th

Dist. Summit No. 27545, 2015-Ohio-4353, ¶ 47 (rejecting manifest weight challenge where the

credibility of the defendant’s testimony was “effectively diminished”).

       {¶14} In sum, we cannot conclude that the trial court lost its way when it determined

that Yerra either believed “Lisa” was 13 years old or was reckless in that regard. As a result, we

determine that Yerra’s convictions are not against the manifest weight of the evidence. See

Weir, 2007-Ohio-6671, at ¶ 28 (rejecting the defendant’s manifest weight challenge to

importuning conviction since “the trial court was free to reject Defendant’s testimony concerning

his belief [about the other person’s age], and there is no basis for us to find that the trial court

lost its way in that regard”); State v. Chance, 12th Dist. Butler No. CA2005-09-373, 2006-Ohio-

3622, ¶ 26-29 (rejecting the defendant’s manifest weight challenge to importuning conviction on

basis that he believed the other person in chat log was an adult playing out a sexual fantasy

where there were “indications that [the girl] had little freedom from parental control” and the

defendant “indicated more than once that he was aware that he was treading on legally dangerous

ground”).

       {¶15} Accordingly, we overrule Yerra’s sole assignment of error.

                                                III.

       {¶16} Having overruled Yerra’s assignment of error, we affirm the judgment of the

Lorain County Court of Common Pleas.
                                                 9


                                                                              Judgment affirmed.




       There were reasonable grounds for this appeal.

       We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Lorain, State of Ohio, to carry this judgment into execution. A certified copy of

this journal entry shall constitute the mandate, pursuant to App.R. 27.

       Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.

       Costs taxed to Appellant.




                                                     JULIE A. SCHAFER
                                                     FOR THE COURT



CARR, P. J.
HENSAL, J.
CONCUR.


APPEARANCES:

MICHAEL J. GOLDBERG, Attorney at Law, for Appellant.

DENNIS P. WILL, Prosecuting Attorney, and MARY R. SLANCZKA, Assistant Prosecuting
Attorney, for Appellee.
