[Cite as State v. Hosseinipour, 2014-Ohio-1090.]
COURT OF APPEALS
DELAWARE COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO : JUDGES:
: Hon. W. Scott Gwin, P.J.
Plaintiff-Appellee : Hon. Sheila G. Farmer, J.
: Hon. Patricia A. Delaney, J.
-vs- :
:
MORTEZA HOSSEINIPOUR : Case No. 13 CAA 05 0046
:
Defendant-Appellant : OPINION
CHARACTER OF PROCEEDING: Appeal from the Court of Common
Pleas, Case No. 12 CR I 02 0080
JUDGMENT: Affirmed
DATE OF JUDGMENT: March 18, 2014
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
ERIC C. PENKAL ELIZABETH N. GABA
140 North Sandusky Street 1231 East Broad Street
Delaware, OH 43015 Columbus, OH 43205
Delaware County, Case No. 13 CAA 05 0046 2
Farmer, J.
{¶1} On February 24, 2012, the Delaware County Grand Jury indicted
appellant, Morteza Hosseinipour, on three counts of unlawful sexual conduct with a
minor in violation of R.C. 2907.04, one count of rape in violation of R.C. 2907.02, and
six counts of illegal use of a minor in nudity oriented material or performance in violation
of R.C. 2907.323.
{¶2} On February 5, 2013, appellant entered Alford pleas to two counts of
attempted illegal use of a minor in nudity oriented material or performance in violation of
R.C. 2907.323(A)(1) and 2923.02. The remaining counts were nolled. By judgment
entry on sentence filed May 14, 2013, the trial court sentenced appellant to an
aggregate term of two years in prison, and classified him as a Tier II sex offender.
{¶3} Appellant filed an appeal and this matter is now before this court for
consideration. Assignments of error are as follows:
I
{¶4} "THE TRIAL COURT ERRED TO THE PREJUDICE OF APPELLANT IN
DENYING APPELLANT'S MOTION TO DISMISS THESE COUNTS OF THE
INDICTMENT. THE CHARGES ARE SO ILL-DEFINED THAT THE DEFENDANT
DOES NOT KNOW WHAT HE IS DEFENDING AGAINST, IN VIOLATION OF HIS 5TH
AND 6TH AMENDMENT RIGHTS AND THE STATUTES ARE VAGUE, OVERBROAD
AND UNCONSTITUTIONAL. IN THE EVENT THAT THIS COURT FINDS THAT THE
STATE DOES NOT HAVE TO PROVE THAT AN ELEMENT OF THE "NUDITY" MUST
REFER TO A "LEWD EXHIBITION OF THE GENITALS" (AS DEMANDED, FOR
EXAMPLE, IN STATE V. KERRIGAN, 168 OHIO APP.3D 455, 2006-OHIO-4279),
Delaware County, Case No. 13 CAA 05 0046 3
THEN THE STATUTES R.C. 2907.323(A)(1) AND (A)(3) ARE UNCONSTITUTIONAL
IN THEIR VAGUENESS AND OVERBREADTH."
II
{¶5} "THE TRIAL COURT ERRED TO THE PREJUDICE OF APPELLANT
WHEN IT FOUND THE DEFENDANT-APPELLANT GUILTY OF THESE TWO
AMENDED COUNTS OF THE INDICTMENT WHEN SAID FINDINGS WERE NOT
SUPPORTED BY SUFFICIENT EVIDENCE, WERE AGAINST THE MANIFEST
WEIGHT OF THE EVIDENCE, AND THE TRIAL COURT APPLIED AN INCORRECT
LEGAL STANDARD IN EVALUATING THE EVIDENCE. HOLDING THESE PHOTOS
TO HAVE "LEWD CONTENT" AND ILLEGAL TO "RECKLESSLY POSSESS" OR
"RECKLESSLY TRANSFER", IS BOTH WRONG AND UNCONSTITUTIONAL. THIS
ACTION WAS IN VIOLATION OF APPELLANT'S 5TH AND 14TH AMENDMENT
RIGHTS, AND FURTHER VIOLATED HIS RIGHTS UNDER THE EQUAL
PROTECTION CLAUSE."
III
{¶6} "THE TRIAL COUT ERRED TO THE PREJUDICE OF APPELLANT
WHEN IT PERMITTED THE SELECTIVE OR DISCRIMINATORY ENFORCEMENT OF
A PENAL STATUTE, IN VIOLATON OF THE EQUAL PROTECTION CLAUSE OF THE
FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AS WELL
AS THE DUE COURSE OF LAW PROVISION AND ARTICLE I SECTION 16 OF THE
OHIO CONSTITUTION. SEC. 2907.323(A)(1) IS UNCNSTITUTIONAL NOT JUST "ON
ITS FACE", BUT "AS APPLIED"."
Delaware County, Case No. 13 CAA 05 0046 4
IV
{¶7} "THE TRIAL COURT ERRED TO THE PREJUDICE OF APPELLANT
WHEN IT DENIED HIS MOTION TO SUPPRESS THE EVIDENCE SEIZED DURING
THE SEARCH OF THE APPELLANT'S HOME AND SEARCH OF THE APPELLANT'S
COMPUTERS AND P.D.A. THE SEARCHES CONDUCTED EXCEEDED THE SCOPE
OF THE AUTHORITY GRANTED BY THE WARRANTS, THE WARRANTS WERE
OTHERWISE DEFECTIVE, AND THERE WAS NO CONSENT TO SEARCH. THE
SEARCHES VIOLATED THE DEFENDANT'S RIGHTS SECURED BY THE FOURTH
AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION AS
WELL AS ARTICLE I, SECTION 14, OF THE OHIO CONSTITUTION AND FURTHER
VIOLATED CRIMINAL RULE 41 AND R.C. 2933.23, 2933.24, AND 2933.25."
V
{¶8} "THE TRIAL COURT ERRED TO THE PREJUDICE OF DEFENDANT BY
SENTENCING THE DEFENDANT TO 2 YEARS ON EACH F3, COMPLETELY
IGNORING THE P.S.I. THIS SENTENCE VIOLATED DEFENDANT'S RIGHTS UNDER
THE FIFTH, SIXTH, EIGHTH AND FOURTEENTH AMENDMENTS TO THE U.S.
CONSTITUTION AND ARTICLE I, §§1, 5, 9, 10, 16 AND 20 OF THE OHIO
CONSTITUTION."
I
{¶9} Appellant claims the trial court erred in denying his motion to dismiss the
illegal use of a minor in nudity oriented material or performance counts because the
statute, R.C. 2907.323, is unconstitutionally vague and overbroad. We disagree.
Delaware County, Case No. 13 CAA 05 0046 5
{¶10} Appellant pled to two counts of attempted illegal use of a minor in nudity
oriented material or performance in violation of R.C. 2907.323(A)(1) and 2923.02(A)
which state the following, respectively:
(A) No person shall do any of the following:
(1) Photograph any minor who is not the person's child or ward in a
state of nudity, or create, direct, produce, or transfer any material or
performance that shows the minor in a state of nudity, unless both of the
following apply:
(a) The material or performance is, or is to be, sold, disseminated,
displayed, possessed, controlled, brought or caused to be brought into this
state, or presented for a bona fide artistic, medical, scientific, educational,
religious, governmental, judicial, or other proper purpose, by or to a
physician, psychologist, sociologist, scientist, teacher, person pursuing
bona fide studies or research, librarian, member of the clergy, prosecutor,
judge, or other person having a proper interest in the material or
performance;
(b) The minor's parents, guardian, or custodian consents in writing
to the photographing of the minor, to the use of the minor in the material or
performance, or to the transfer of the material and to the specific manner
in which the material or performance is to be used.
(A) No person, purposely or knowingly, and when purpose or
knowledge is sufficient culpability for the commission of an offense, shall
Delaware County, Case No. 13 CAA 05 0046 6
engage in conduct that, if successful, would constitute or result in the
offense.
{¶11} Appellant's convictions for attempted illegal use of a minor in nudity
oriented material or performance stemmed from two photographs sent to him from a
fifteen year old girl. One photograph depicted the girl topless, and the second
photograph depicted an exposed nipple. The core of appellant's argument is that the
holding in Osborne v. Ohio, 495 U.S. 103 (1990), in "defining" the phrase "state of
nudity," requires a "lewd exhibition of the genitals" and in this case, there is no such
showing in the two photographs. Appellant's Brief at 5. In our reading of Osborne, we
find this argument to be flawed.
{¶12} In Osborne, the United States Supreme Court specifically found Ohio's
statute, R.C. 2907.323, passed constitutional muster on all issues of vagueness and
overbreadth, and was not an unconstitutional violation of the First Amendment. The
Osborne court did not review R.C. 2907.323(A)(1), the subsection appellant pled to, but
subsection (A)(3) which states the following:
(A) No person shall do any of the following:
(3) Possess or view any material or performance that shows a
minor who is not the person's child or ward in a state of nudity, unless one
of the following applies:
(a) The material or performance is sold, disseminated, displayed,
possessed, controlled, brought or caused to be brought into this state, or
Delaware County, Case No. 13 CAA 05 0046 7
presented for a bona fide artistic, medical, scientific, educational, religious,
governmental, judicial, or other proper purpose, by or to a physician,
psychologist, sociologist, scientist, teacher, person pursuing bona fide
studies or research, librarian, member of the clergy, prosecutor, judge, or
other person having a proper interest in the material or performance.
(b) The person knows that the parents, guardian, or custodian has
consented in writing to the photographing or use of the minor in a state of
nudity and to the manner in which the material or performance is used or
transferred.
{¶13} Both subsections refer to a "state of nudity." Although we are only
concerned with a violation under R.C. 2907.323(A)(1), we find the Osborne case to be
definitive and binding upon the constitutional issues presented sub judice. In State v.
Graves, 184 Ohio App.3d 39, 2009-Ohio-974 (4th Dist.2009), ¶ 9, out brethren from the
Fourth District stated the following:
Before we go further, we point out that both Young and Osborne
involved R.C. 2907.323(A)(3), not subsection (A)(1). However, this fact
makes no difference for purposes of our analysis. This court has
previously held that the same "lewd" or "graphic focus on the genitals" that
both Supreme Courts applied to an (A)(3) offense applies equally to an
(A)(1) offense. See State v. Walker (1999), 134 Ohio App.3d 89, 94, 730
Delaware County, Case No. 13 CAA 05 0046 8
N.E.2d 419; State v. Steele (Aug. 21, 2001), Vinton App. No. 99CA530,
2001 WL 898748.
{¶14} The Osborne holding gives a green light to Ohio's statutory scheme:
The Ohio statute, on its face, purports to prohibit the possession of
"nude" photographs of minors. We have stated that depictions of nudity,
without more, constitute protected expression. See Ferber [New York v.,
458 U.S. 747], supra, at 765, n. 18, 102 S.Ct., at 3359, n. 18. Relying on
this observation, Osborne argues that the statute as written is substantially
overbroad. We are skeptical of this claim because, in light of the statute's
exemptions and "proper purposes" provisions, the statute may not be
substantially overbroad under our cases.***However that may be,
Osborne's overbreadth challenge, in any event, fails because the statute,
as construed by the Ohio Supreme Court on Osborne's direct appeal,
plainly survives overbreadth scrutiny. Under the Ohio Supreme Court
reading, the statute prohibits "the possession or viewing of material or
performance of a minor who is in a state of nudity, where such nudity
constitutes a lewd exhibition or involves a graphic focus on the genitals,
and where the person depicted is neither the child nor the ward of the
person charged." 37 Ohio St.3d, at 252, 525 N.E.2d, at 1368.***By
limiting the statute's operation in this manner, the Ohio Supreme Court
avoided penalizing persons for viewing or possessing innocuous
Delaware County, Case No. 13 CAA 05 0046 9
photographs of naked children. We have upheld similar language against
overbreadth challenges in the past. In Ferber, we affirmed a conviction
under a New York statute that made it a crime to promote the " 'lewd
exhibition of [a child's] genitals.' " 458 U.S., at 751, 102 S.Ct., at 3351.
We noted that "[t]he term 'lewd exhibition of the genitals' is not unknown in
this area and, indeed, was given in Miller [v. California, 413 U.S. 15, 93
S.Ct. 2607, 37 L.Ed.2d 419 (1973),] as an example of a permissible
regulation." Id., at 765, 102 S.Ct., at 3359.
Osborne, 495 U.S. 103 at 112-114.
{¶15} Upon review, we find R.C. 2907.323(A)(1) is constitutional, and the
prohibited activity bans lewd exhibition with no necessity to establish the exhibition of
genitals.
{¶16} Assignment of Error I is denied.
II
{¶17} Appellant claims his convictions for attempted illegal use of a minor in
nudity oriented material or performance in violation of R.C. 2907.323(A)(1) and 2923.02,
as cited above, were against the manifest weight of the evidence as the two
photographs did not meet the definition of child pornography. We disagree.
{¶18} On review for manifest weight, a reviewing court is to examine the entire
record, weigh the evidence and all reasonable inferences, consider the credibility of
witnesses and determine "whether in resolving conflicts in the evidence, the jury clearly
Delaware County, Case No. 13 CAA 05 0046 10
lost its way and created such a manifest miscarriage of justice that the conviction must
be reversed and a new trial ordered." State v. Martin, 20 Ohio App.3d 172, 175 (1st
Dist.1983). See also, State v. Thompkins, 78 Ohio St.3d 380, 1997-Ohio-52. The
granting of a new trial "should be exercised only in the exceptional case in which the
evidence weighs heavily against the conviction." Martin at 175.
{¶19} It is appellant's position that the two photographs do not show sexual
activity or a lewd exhibition of genitals. Appellant again argues there must be proof of
"lewd exhibition of genitals" when the statute does not require such. It is clear that
Osborne found the statute constitutional as written, including the mens rea of
recklessness, and dispelling the argument that there are no innocent photographs of
childhood nudity i.e., "a family friend's possession of an innocuous picture of an
unclothed infant." Osborne, 495 U.S. 103 at 115 and fn. 11.
{¶20} The gravamen of this assignment of error is whether the photographs
depict nudity in a lewd exhibition.
{¶21} The photographs, State's Exhibit I, were presented to this court under
seal. It is clear the photographs depict a partially clothed girl with her breasts exposed.
{¶22} R.C. 2907.01(H) defines "nudity" as: "the showing, representation, or
depiction of human male or female genitals, pubic area, or buttocks with less than a full,
opaque covering, or of a female breast with less than a full, opaque covering of any
portion thereof below the top of the nipple, or of covered male genitals in a discernibly
turgid state."
{¶23} We conclude the photographs depict nudity. As to a lewd exhibition, the
subject is posed; therefore, the photographs are an exhibition. The posed partially
Delaware County, Case No. 13 CAA 05 0046 11
clothed subject is not in a normally posed fashion. The poses are inherently sexual as
the subject arched her back and fully exposed her breasts. These photographs are
similar to images portrayed in "Playboy" whose main purpose is to exhibit sexual
behavior that approaches sexual innuendo.
{¶24} Upon review, we find the convictions for attempted illegal use of a minor in
nudity oriented material or performance were not against the manifest weight of the
evidence.
{¶25} Assignment of Error II is denied.
III
{¶26} Appellant claims he was selectively prosecuted. We disagree.
{¶27} As the state points out, this issue was never raised to the trial court and
therefore, there is no evidence pro or con on the issue of selective or discriminatory
prosecution.
{¶28} An error not raised in the trial court must be plain error for an appellate
court to reverse. State v. Long, 53 Ohio St.2d 91 (1978); Crim.R. 52(B). In order to
prevail under a plain error analysis, appellant bears the burden of demonstrating that
the outcome of the trial clearly would have been different but for the error. Long. Notice
of plain error "is to be taken with the utmost caution, under exceptional circumstances
and only to prevent a manifest miscarriage of justice." Id. at paragraph three of the
syllabus.
{¶29} In State v. Flynt, 63 Ohio St.2d 132, 134 (1980), the Supreme Court of
Ohio explained the following:
Delaware County, Case No. 13 CAA 05 0046 12
The conscious exercise of some selectivity in enforcement is not in
itself, however, a violation of the United States Constitution. Oyler v.
Boles (1962), 368 U.S. 448, 456, 82 S.Ct. 501, 505, 7 L.Ed.2d 446. In
order for selective enforcement to reach the level of unconstitutional
discrimination the discrimination must be "intentional or purposeful."
Snowden v. Hughes (1944), 321 U.S. 1, 8, 64 S.Ct. 397, 401, 88 L.Ed.
497. This concept of "intentional or purposeful discrimination" was
explained in United States v. Berrios (C.A.2, 1974), 501 F.2d 1207,
1211, as follows:
"To support a defense of selective or discriminatory prosecution, a
defendant bears the heavy burden of establishing, at least prima facie, (1)
that, while others similarly situated have not generally been proceeded
against because of conduct of the type forming the basis of the charge
against him, he has been singled out for prosecution, and (2) that the
government's discriminatory selection of him for prosecution has been
invidious or in bad faith, i.e., based upon such impermissible
considerations as race, religion, or the desire to prevent his exercise of
constitutional rights. These two essential elements are sometimes
referred to as 'intentional and purposeful discrimination.' " This test has
been recognized by numerous courts. (Citations omitted.)
{¶30} With no record established as to prosecutions of R.C. 2907.323 in the
county, we are unable to address even the plain error standard.
Delaware County, Case No. 13 CAA 05 0046 13
{¶31} Again, in this assignment of error, appellant harkens back to the same
arguments as to vagueness and overbreadth in Assignments of Error I and II.
{¶32} Based upon our analysis of the statute, the case law, and the evidence,
we find the arguments hereunder to be unsupported. Appellant argues it was harmless
to merely open an email and view the photographs. However, appellant did not only
view the photographs, but saved and stored them on his computer. Appellant's actions
fly in the face of his claim of innocent perusal.
{¶33} Upon review, we find appellant was not selectively prosecuted.
{¶34} Assignment of Error III is denied.
IV
{¶35} Appellant claims the trial court erred in denying his motion to suppress as
the search warrants executed to seize his property and search the contents of said
property lacked probable cause, lacked a nexus between the alleged criminal activity
and the requested searches, were overbroad, and were the result of an illegal search.
We disagree.
{¶36} There are three methods of challenging on appeal a trial court's ruling on a
motion to suppress. First, an appellant may challenge the trial court's findings of fact.
In reviewing a challenge of this nature, an appellate court must determine whether said
findings of fact are against the manifest weight of the evidence. State v. Fanning, 1
Ohio St.3d 19 (1982); State v. Klein, 73 Ohio App.3d 486 (4th Dist.1991); State v.
Guysinger, 86 Ohio App.3d 592 (4th Dist.1993). Second, an appellant may argue the
trial court failed to apply the appropriate test or correct law to the findings of fact. In that
case, an appellate court can reverse the trial court for committing an error of law. State
Delaware County, Case No. 13 CAA 05 0046 14
v. Williams, 86 Ohio App.3d 37 (4th Dist.1993). Finally, assuming the trial court's
findings of fact are not against the manifest weight of the evidence and it has properly
identified the law to be applied, an appellant may argue the trial court has incorrectly
decided the ultimate or final issue raised in the motion to suppress. When reviewing
this type of claim, an appellate court must independently determine, without deference
to the trial court's conclusion, whether the facts meet the appropriate legal standard in
any given case. State v. Curry, 95 Ohio App.3d 93 (8th Dist.1994); State v. Claytor, 85
Ohio App.3d 623 (4th Dist.1993); Guysinger. As the United States Supreme Court held
in Ornelas v. U.S., 517 U.S. 690, 116 S.Ct. 1657, 1663 (1996), "…as a general matter
determinations of reasonable suspicion and probable cause should be reviewed de
novo on appeal."
{¶37} As explained in State v. Jordan, 101 Ohio St.3d 216, 2004-Ohio-783, ¶
37-38:
In Illinois v. Gates (1983), 462 U.S. 213, 238, 103 S.Ct. 2317, 76
L.Ed.2d 527, the United States Supreme Court reviewed the sufficiency of
probable cause in an affidavit requesting a search warrant. The Supreme
Court held: "The task of the issuing magistrate is simply to make a
practical, common-sense decision whether, given all the circumstances
set forth in the affidavit before him, including the 'veracity' and 'basis of
knowledge' of persons supplying hearsay information, there is a fair
probability that contraband or evidence of a crime will be found in a
particular place." Accord State v. George (1989), 45 Ohio St.3d 325, 544
Delaware County, Case No. 13 CAA 05 0046 15
N.E.2d 640, paragraph one of the syllabus. In Gates, 462 U.S. at 235,
103 S.Ct. 2317, 76 L.Ed.2d 527, the court elaborated that the standard of
probable cause is only the probability, and not a prima facie showing, of
criminal activity.
Moreover, "[i]n conducting any after-the-fact scrutiny of an affidavit
submitted in support of a search warrant, trial and appellate courts should
accord great deference to the magistrate's determination of probable
cause, and doubtful or marginal cases in this area should be resolved in
favor of upholding the warrant." George, 45 Ohio St.3d 325, 544 N.E.2d
640, paragraph two of the syllabus, following Illinois v. Gates.
{¶38} Two search warrants were issued in this case; the first on February 16,
2010, and the second on February 18, 2010.
{¶39} The February 16, 2010 search warrant issued by Judge David Sunderman
included the following language in pertinent part:
A search of said person, building, place, or vehicle, will be executed
within three (3) days after issuance of this warrant, the said premises
being in the County of Delaware, Ohio, aforesaid, and diligently search for
said goods, chattels, or articles, to wit, pursuant to 2933.21 of the Ohio
Revised Code, and Rule 41 of the Ohio Rules of Criminal Procedure,
evidence of the commission of the criminal offense of Rape, section
2907.02 of the Ohio Revised Code, Gross Sexual Imposition section
Delaware County, Case No. 13 CAA 05 0046 16
2907.05 of the Ohio Revised Code and Unlawful Sexual Conduct involving
a minor, section 2907.04 of the Ohio Revised Code; all indicia,
documents, and records showing ownership or rights of possession of the
residence of Morteza Hosseinipour 8094 Trial Lake Drive, Liberty
Township, Powell, Ohio 43065.
Any or all of the above-described records may be stored by means
of computerized information system(s) computers.
You are further commanded to bring the same or any part thereof,
found on such search, forthwith before me, or some other judge of this
court having cognizance thereof, to be disposed of and dealt with
according to law. In lieu, therefore, you are authorized to retain such
seized property and evidence in the property room of the Powell Police
Department.
{¶40} The search warrant affidavit of Detective Darren Smith of the Powell
Police Department that was presented to Judge Sunderman included a recitation of a
report made by the victim to another police officer in the Powell Police Department,
Officer Boruchowitz (Report No. 09-1285). This report included descriptions of various
non-consensual sexual activities between appellant and the victim, and numerous
emails the victim received from appellant. The affidavit explained that the emails were
tracked from appellant to the victim via a subpoena to Time Warner Cable Company.
Time Warner records confirmed the emails were sent to the victim from accounts
belonging to appellant.
Delaware County, Case No. 13 CAA 05 0046 17
{¶41} Standing alone, on its face, the affidavit for the first search warrant
established a nexus between the alleged criminal activity and the seizure of
"computerized information system(s) computers" because of the emails appellant had
sent to the victim, the victim's assertions of unlawful sexual conduct, and the records of
Time Warner. The issuance of the first warrant met the parameters of probable cause
and was not overbroad.
{¶42} The second search warrant dated February 18, 2010 requested the
seizure of specific information stored within the computers seized during the execution
of the first search warrant:
A search of said person, building, place, or vehicle, will be executed
within three (3) days after issuance of this warrant, the said premises
being in the County of Delaware, Ohio, aforesaid, and diligently search for
said goods, chattels, or articles, to wit, pursuant to 2933.21 of the Ohio
Revised Code, and Rule 41 of the Ohio Rules of Criminal Procedure,
evidence of the commission of the criminal offense of Rape, section
2907.02 of the Ohio Revised Code, Gross Sexual Imposition section
2907.05 of the Ohio Revised Code and Unlawful Sexual Conduct involving
a minor, section 2907.04 of the Ohio Revised Code; to wit: information
that might be stored in the following items, Dell 830 computer S/N#
588SF31, Sony Clie S/N# 28936031-4041721, Dell Laptop S/N#
5YQTF31, and a H.P. Laptop S/N# CND9041DSP.
Delaware County, Case No. 13 CAA 05 0046 18
You are further commanded to bring the same or any part thereof,
found on such search, forthwith before me, or some other judge of this
court having cognizance thereof, to be disposed of and dealt with
according to law. In lieu, therefore, you are authorized to retain such
seized property and evidence in the property room of the Powell Police
Department.
{¶43} The return of the first search warrant included an inventory sheet listing
the specific computers named in the second search warrant. The second search
warrant was not overbroad.
{¶44} The crux of appellant's argument relative to the second search warrant is
that somehow appellant's computer files were opened illegally without a search warrant.
Appellant's Brief at 23 and 25.
{¶45} Although there is no definitive ruling on the record or in the docket as to
the trial court's decision regarding the motion to suppress and this issue, during the
suppression hearing, the trial court stated appellant had failed to establish evidence of
such unlawful action. May 4, 2012 T. at 124-128.
{¶46} In issuing the second search warrant, the trial court granted an extension
of the three day execution rule under Crim.R. 41(C)(2). May 4, 2012 T. at 88. The
return of the second search warrant indicates the information on the computers was not
obtained by an FBI specialist until April 2, 2010. The salient fact absent and ignored by
appellant is that the computers were already in police possession via the first search
warrant as evidenced by the inventory sheet attached to the return of said warrant. Any
Delaware County, Case No. 13 CAA 05 0046 19
delay in actually retrieving the information from the computers did not prejudice
appellant nor infringe upon his Fourth Amendment rights.
{¶47} Appellant also claims that under R.C. 2933.53, Judge Sunderman did not
have the authority to issue the second search warrant as he was a municipal court
judge and not a court of common pleas judge. R.C. 2933.53 applies only to
"interception" warrants and not to the search of confiscated computers' hard drives
and/or emails.
{¶48} Upon review, we find the trial court did not err in denying appellant's
motion to suppress.
{¶49} Assignment of Error IV is denied.
V
{¶50} Appellant claims the trial court erred in sentencing him to two years on
each count, to be served concurrently. We disagree.
{¶51} Appellant argues the trial court completely disregarded the presentence
investigation report as he had no criminal record and there was no evidence of violence.
Therefore, the sentences were unreasonable and disproportional.
{¶52} Appellant was convicted of two counts of attempted illegal use of a minor
in nudity oriented material or performance, felonies of the third degree. Pursuant to
R.C. 2929.14(A)(3)(b), felonies of the third degree shall be punishable by "nine, twelve,
eighteen, twenty-four, thirty, or thirty-six months."
{¶53} In sentencing appellant to twenty-four months on each count, the trial
court considered the presentence investigation report among other things, and found
appellant did not show remorse, was in a position of trust with the victim who was a
Delaware County, Case No. 13 CAA 05 0046 20
minor, and was fifty-three years old with a legal education and was "very bright."
Judgment Entry on Sentence filed May 14, 2013. The trial court weighed all of the
factors before it and sentenced appellant to less than the maximum.
{¶54} Appellant took advantage of his position of trust with the victim. February
5, 2012 T. at 46. He was aware that the victim was fifteen years old as he had attended
her fifteenth birthday party a few months prior to the sending of the photographs. Id. at
26, 29. Appellant saved the photographs and transferred them to various computers.
Id. at 25, 27-28. A review of the presentence investigation report confirms these facts.
{¶55} Upon review, we find the sentences were not contrary to law, and were
not an abuse of discretion. R.C. 2953.08(G)(2); State v. Kalish, 120 Ohio St.3d 23,
2008-Ohio-4912; Blakemore v. Blakemore, 5 Ohio St.3d 217 (1983).
{¶56} Assignment of Error V is denied.
Delaware County, Case No. 13 CAA 05 0046 21
{¶57} The judgment of the Court of Common Pleas of Delaware County, Ohio is
hereby affirmed.
By Farmer, J.
Gwin, PJ. and
Delaney, J. concur.
SGF/sg 131