State v. Gornall

[Cite as State v. Gornall, 2016-Ohio-7599.]

COURT OF APPEALS
ASHLAND COUNTY, OHIO
FIFTH APPELLATE DISTRICT

STATE OF OHIO : JUDGES:
: Hon. Sheila G. Farmer, P.J.
Plaintiff - Appellee : Hon. William B. Hoffman, J.
: Hon. Craig R. Baldwin, J.
-vs- :
:
ELLIOT T. GORNALL : Case No. 16-COA-002
:
Defendant - Appellant : OPINION

CHARACTER OF PROCEEDING: Appeal from the Ashland County
Court of Common Pleas, Case No.
15-CRI-084

JUDGMENT: Affirmed

DATE OF JUDGMENT: November 2, 2016

APPEARANCES:

For Plaintiff-Appellee For Defendant-Appellant

CHRISTOPHER R. TUNNELL RUSSELL S. BENSING
Ashland County Prosecutor 600 IMG Building
1360 East Ninth Street
By: GARY D. BISHOP Cleveland, Ohio 44114
First Assistant Prosecutor
110 Cottage Street, Third Floor
Ashland, Ohio 44805
Ashland County, Case No. 16-COA-002 2

Baldwin, J.

{¶1} Appellant Elliot T. Gornall appeals a judgment of the Ashland County

Common Pleas Court convicting him of sixty-six counts of illegal use of a minor in nudity-

oriented material or performance (R.C. 2907.323(A)(1)), six counts of attempted illegal

use of a minor in nudity-oriented material or performance (R.C. 2923.02(A), (R.C.

2907.323(A)(1)), fifty-five counts of pandering obscenity involving a minor (R.C.

2907.321(A)(5)), forty-five counts of illegal use of a minor in nudity-oriented material or

performance (R.C. 2907.323(A)(3)), two counts of aggravated possession of drugs (R.C.

2925.11(A), possession of marijuana (R.C. 2925.11(A)), and receiving stolen property

(R.C. 2913.51(A)). Appellee is the State of Ohio.

STATEMENT OF THE FACTS AND CASE

{¶2} On November 4, 2014, the Loudonville Police Department was contacted

by the U.S. Department of Homeland Security in San Diego, California. The U.S.

Customs and Border Protection facility in San Diego had intercepted a package from

overseas containing narcotics. The package was addressed to appellant, who was

employed as a kindergarten teacher by the Loudonville-Perrysville School District. Capt.

James Coey of the Loudonville police contacted the U.S. Postal Service to arrange a

controlled delivery of the parcel, and obtained an anticipatory search warrant for

appellant’s residence.

{¶3} On November 13, 2014, Capt. Coey surveilled the residence along with

other detectives while a postal inspector delivered the package. Appellant retrieved the

parcel and took it inside his residence. Police entered shortly thereafter to conduct the

search. The detectives found marijuana, a marijuana smoking pipe, a firearm, the
Ashland County, Case No. 16-COA-002 3

delivered parcel of narcotics, and another parcel containing narcotics. In addition to the

evidence of drug activity, they found fourteen pairs of little girls’ panties and some soiled

tissues next to appellant’s bed. Inside a trunk behind his couch, detectives found a copy

of a book titled “Show Me,” containing graphic images of nude small children.

{¶4} Appellant told Capt. Coey that he ordered the drugs online from the

Philippines, and he had ordered drugs from South Africa and other countries online as

well. He later admitted that he had a sexual fetish for children’s panties, and used them

to masturbate. Officers seized appellant’s computers and other electronic devices.

{¶5} Police obtained a second search warrant on November 26, 2014, to search

the contents of the seized computers for evidence related to trafficking in drugs and

pandering obscenity involving a minor. Agents of the Bureau of Criminal Identification &

Investigation (BCI&I) conducted the search of the hard drive of appellant’s computer using

forensic software. Nicholas Jenkins began by searching for evidence of narcotics activity.

The search revealed that pictures were stored in the image files. While looking through

the image files for evidence of drug activity, Jenkins found images and videos of nude

children performing sexual acts, and also found videos of small children using the

restroom.

{¶6} After the search, the Ohio Supreme Court published its decision in State v.

Castagnola, 145 Ohio St. 3d 1, 2015-Ohio-1565, 46 N.E.3d 638. After reviewing the case,

the State obtained a third search warrant to insulate the search of the computers in light

of that decision. The third warrant was obtained on June 10, 2015, and yielded the same

results as the November 26, 2014 search warrant.
Ashland County, Case No. 16-COA-002 4

{¶7} Further investigation revealed that appellant had placed a hidden camera

in the private restroom of his kindergarten classroom, and surreptitiously videotaped his

students using the restroom, exposing their genitalia to the hidden camera.

{¶8} Appellant was indicted with sixty-six counts of illegal use of a minor in

nudity-oriented material or performance (R.C. 2907.323(A)(1)), six counts of attempted

illegal use of a minor in nudity-oriented material or performance (R.C. 2923.02(A), (R.C.

2907.323(A)(1)), fifty-five counts of pandering obscenity involving a minor (R.C.

2907.321(A)(5)), forty-five counts of illegal use of a minor in nudity-oriented material or

performance (R.C. 2907.323(A)(3)), two counts of aggravated possession of drugs (R.C.

2925.11(A), possession of marijuana (R.C. 2925.11(A)), and receiving stolen property

(R.C. 2913.51(A)).

{¶9} Appellant filed a motion to suppress evidence seized from the search of the

computers. The trial court denied the motion after hearing, finding that evidence of

pandering obscenity of minors would have been inevitably discovered during the search

for evidence of narcotics activity. Appellant then pled no contest to all charges and was

sentenced to an aggregate prison term of fifty-six years, with an aggregate fine of

$15,700.00.

{¶10} Appellant assigns three errors on appeal:

{¶11} “I. THE JUDGE ERRED IN DENYING DEFENDANT’S MOTION TO

SUPPRESS EVIDENCE, IN DEROGATION OF DEFENDANT’S RIGHTS UNDER THE

FOURTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ARTICLE I,

SECTION 14 OF THE OHIO CONSTITUTION.
Ashland County, Case No. 16-COA-002 5

{¶12} “II. THE RECORD CLEARLY AND CONVINCINGLY DEMONSTRATES

THAT THE TRIAL COURT’S IMPOSITION OF CONSECUTIVE SENTENCES IS

UNSUPPORTED.

{¶13} “III. THE TRIAL COURT ERRED IN IMPOSING A TOTAL FINE OF

$15,700 ON DEFENDANT.”

I.

{¶14} In his first assignment of error, appellant argues that the trial court erred in

overruling his motion to suppress evidence of child pornography taken from his computer,

as the warrant was issued pursuant to an affidavit which failed to set forth probable cause

that such evidence would be located on his computer.

{¶15} 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, 437 N.E.2d 583 (1982); State v. Klein, 73 Ohio App.3d 486, 597 N.E.2d

1141(1991); State v. Guysinger, 86 Ohio App.3d 592, 621 N.E.2d 726(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 v. Williams, 86 Ohio App.3d 37, 619 N.E.2d 1141 (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
Ashland County, Case No. 16-COA-002 6

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, 641

N.E.2d 1172 (1994); State v. Claytor, 85 Ohio App.3d 623, 620 N.E.2d 906 (1993);

Guysinger, supra. As the United States Supreme Court held in Ornelas v. U.S., 517 U.S.

690, 116 S.Ct. 1657, 1663, 134 L.Ed.2d 911 (1996), “... as a general matter

determinations of reasonable suspicion and probable cause should be reviewed de novo

on appeal.”

{¶16} When ruling on a motion to suppress, the trial court assumes the role of trier

of fact and is in the best position to resolve questions of fact and to evaluate the credibility

of witnesses. See State v. Dunlap, 73 Ohio St.3d 308, 314, 1995–Ohio–243, 652 N.E.2d

988; State v. Fanning , 1 Ohio St.3d 19, 20, 437 N.E.2d 583 (1982).

{¶17} Appellant does not argue that the affidavit lacked probable cause to search

the computer for evidence of narcotics activity. The trial court found that in searching for

evidence of narcotics activity, evidence of child pornography would have been inevitably

discovered, and did not address the issue of whether the affidavit was sufficient to provide

probable cause to search the computer for evidence of child pornography.

{¶18} Pursuant to the inevitable discovery doctrine, illegally obtained evidence is

properly admitted in a trial court proceeding once it is established that the evidence would

have been ultimately or inevitably discovered during the course of a lawful investigation.

State v. Perkins, 18 Ohio St.3d 193, 196, 480 N.E.2d 763 (1985), citing Nix v. Williams,

467 U.S. 431, 104 S.Ct. 2501, 81 L.Ed.2d 377 (1984). The inevitable discovery doctrine

is applied only in limited circumstances where the state can show by a preponderance of
Ashland County, Case No. 16-COA-002 7

the evidence that, despite the constitutional violation, discovery of the evidence was, in

fact, inevitable. Id. at 766-767.

{¶19} Nicholas Jenkins of BCI&I testified that he began by searching for evidence

of narcotics activity in the web history, and for images of drug paraphernalia or pictures

of drugs. Supp. Tr. 34. He found two images depicting drug activity. Supp. Tr. 34-35.

In searching in the image files for the pictures of narcotics, images of child pornography

showed up. Supp. Tr. 35. He could not look for evidence probative of drug activity without

finding the images of child pornography. Supp. Tr. 35. Although the warrant specified

that he was looking for evidence of child pornography or pandering obscenity involving a

minor, he began first searching for evidence of drug activity. Supp. Tr. 43. The evidence

he found of child pornography was in the files he would have been looking through to find

evidence of drug activity. Supp. Tr. 44. Based on Jenkins’s testimony, the trial court did

not err in finding that discovery of the evidence of child pornography and pandering

obscenity involving a minor was inevitable.

{¶20} Appellant argues that the discovery of the evidence could not be “inevitable”

because the search warrant specifically allowed Jenkins to search for evidence of child

pornography and pandering. However, Jenkins testified that he began his search with a

search for evidence of narcotics activity, and discovered the pornography in the files he

was looking at to find evidence of drug activity.

{¶21} Appellant also argues that the discovery could not be “inevitable” because

Jenkins searched the entire computer, in violation of the Ohio State Supreme Court’s

decision in State v. Castagnola, 145 Ohio St. 3d 1, 2015-Ohio-1565, 46 N.E.3d 638.
Ashland County, Case No. 16-COA-002 8

{¶22} In Castagnola, the affidavit provided to obtain the search warrant stated that

the defendant said he found the victim’s address “online in the clerk of courts.” Execution

of the warrant led to the seizure of two computers. A search of the contents of the

computers revealed over a thousand videos and images of child pornography. The Ohio

Supreme Court ultimately found the search warrant for the computers was not supported

by probable cause to believe a computer in the defendant’s residence was used in

furtherance of the alleged crimes, as the defendant did not actually use the word “online”

in his interview with the detective concerning where he found the victim’s address. Id. at

¶10.

{¶23} The court then went on to address the particularity requirement of the Fourth

Amendment as it pertains to the search of files on a computer. The warrant described

the objects subject to seizure from the defendant’s home as “[r]ecords and documents

either stored on computers, ledgers, or any other electronic recording device.” A separate

section states that if found, said items will be used as evidence in the prosecution of

retaliation, criminal trespassing, criminal damaging, and possession of criminal tools.

{¶24} In finding the warrant was not sufficiently particular, the court noted first that

the warrant did not guide or control the analyst’s discretion as to what was to be seized

on the computer, allowing her to look at all the evidence on the hard drive to determine

what to seize. Id. at ¶83. Second, the broad language clearly included items that were

not subject to seizure. Id. at ¶84. The state argued that nothing in the record suggested

that the police knew ahead of time precisely where the items were stored. The court held

that the particularity issue did not relate to where the information was stored, but rather
Ashland County, Case No. 16-COA-002 9

“what” evidence the detective had a fair probability of believing was on the computer. Id.

at ¶85.

{¶25} In Castagnola, the detective believed the defendant found the victim’s

address online, and that evidence of the online search would be useful in the prosecution

of the offenses. He testified that in addition to a general Google search or online-white-

pages search, he believed the defendant might have searched the clerk of courts’ website

for information about the victim. The detective testified that from his previous experience,

he knew that an online search would create a cookie. Under the Fourth Amendment,

these details should have been included in the warrant to guide and control the searcher,

and sufficiently narrow the category of records subject to seizure. Id. at ¶87.

{¶26} However, the court rejected the contention that the Fourth Amendment

requires the warrant to specify restrictive search protocols:

In urging this court to find that the search warrant sufficiently

particularized the items to be searched for, the state provides a breadth of

authority rejecting the notion that a search warrant must contain a restrictive

protocol, methodology, or other strategy for conducting the search in order

to satisfy the Fourth Amendment. We agree that the Fourth Amendment

does not require a search warrant to specify restrictive search protocols, but

we also recognize that the Fourth Amendment does prohibit a “sweeping

comprehensive search of a computer's hard drive.” Walser, 275 F.3d at 986.

The logical balance of these principles leads to the conclusion that officers

must describe what they believe will be found on a computer with as much

specificity as possible under the circumstances. This will enable the
Ashland County, Case No. 16-COA-002 10

searcher to narrow his or her search to only the items to be seized.

Adherence to this requirement is especially important when, as here, the

person conducting the search is not the affiant. See generally United States

v. Gahagan, 865 F.2d 1490, 1498–1499 (6th Cir.1989).

{¶27} Id. at ¶88.

{¶28} Appellant argues that the warrant in the instant case allowed the same

sweeping comprehensive search of the hard drive as the warrant in Castagnola. We

disagree. Appellant argues the warrant and affidavit should have narrowed the search to

files where evidence of his drug trafficking activity could be found, such as internet search

history and bookmarks, and payment programs such as Quicken and Excel. However,

Castagnola specifically states that the Fourth Amendment does not require a search

warrant to specify restrictive search protocols. Further, unlike the detective in Castagnola

who testified specifically as to where he expected evidence of the search for the address

to be, the record in the instant case does not support a conclusion that the officers

possessed any more specificity as to the location of computer files concerning appellant’s

drug activity than set forth in the affidavit. The warrant provided sufficient guidance to the

analyst to search for only the items to be seized: evidence of possession of drugs and

trafficking in drugs, and/or pandering obscenity involving a minor.

{¶29} Jenkins testified that because of the way computer systems work, you can

put things anywhere, “safe” files anywhere. Supp. Tr. 35-36. He testified that he does

not search all the files on the computer, and tries to limit the search to what is pertinent

in the case. Supp. Tr. 41. For example, they do not look at the pre-installed Windows

files that come with the operating system. Supp. Tr. 41. He further testified that it is
Ashland County, Case No. 16-COA-002 11

necessary to look at the content of the files because file names don’t necessarily

represent what the files are. Supp. Tr. 44. In the instant case, evidence of drug

possession or trafficking activity concerning appellant’s admitted online purchases of

narcotics could have been “hidden” almost anywhere on the computer. The instant case

is distinguishable from Castagnola, where the only evidence regarding the use of the

defendant’s computer in furtherance of the crime was an inference drawn by the police

officer that he might have found the victim’s address through an online search. Under the

circumstances of the instant case, the warrant set forth what the officers believed would

be found on the computer with as much specificity as possible.

{¶30} The first assignment of error is overruled.

II.

{¶31} In his second assignment of error, appellant argues that the court erred in

imposing consecutive sentences.

{¶32} The two-step approach set forth in State v. Kalish, 120 Ohio St.3d 23, 2008–

Ohio–4912, 896 N.E.2d 124 no longer applies to appellate review of felony sentences.

We now review felony sentences using the standard of review set forth in R.C. 2953.08.

State v. Marcum, ––– Ohio St.3d ––––, 2016–Ohio–1002, –––– N.E.3d ––––, ¶ 22. R.C.

2953.08(G)(2) provides that we may either increase, reduce, modify, or vacate a sentence

and remand for resentencing where we clearly and convincingly find that either the record

does not support the sentencing court's findings under R.C. 2929.13(B) or (D),

2929.14(B)(2)(e) or (C)(4), or 2929.20(I), or the sentence is otherwise contrary to law.

See, also, State v. Bonnell, 140 Ohio St.3d 209, 2014–Ohio–3177, 16 N.E.2d 659, ¶ 28.
Ashland County, Case No. 16-COA-002 12

{¶33} Clear and convincing evidence is that evidence “which will provide in the

mind of the trier of facts a firm belief or conviction as to the facts sought to be established.”

Cross v. Ledford, 161 Ohio St. 469, 120 N.E.2d 118(1954), paragraph three of the

syllabus. “Where the degree of proof required to sustain an issue must be clear and

convincing, a reviewing court will examine the record to determine whether the trier of

facts had sufficient evidence before it to satisfy the requisite degree of proof.” Id. at 477.

{¶34} R.C. 2929.14(C)(4) provides:

If multiple prison terms are imposed on an offender for convictions

of multiple offenses, the court may require the offender to serve the prison

terms consecutively if the court finds that the consecutive service is

necessary to protect the public from future crime or to punish the offender

and that consecutive sentences are not disproportionate to the seriousness

of the offender's conduct and to the danger the offender poses to the public,

and if the court also finds any of the following:

(a) The offender committed one or more of the multiple offenses while the

offender was awaiting trial or sentencing, was under a sanction

imposed pursuant to section 2929.16, 2929.17, or 2929.18 of the

Revised Code, or was under post-release control for a prior offense.

(b) At least two of the multiple offenses were committed as part of one or

more courses of conduct, and the harm caused by two or more of the

multiple offenses so committed was so great or unusual that no single

prison term for any of the offenses committed as part of any of the
Ashland County, Case No. 16-COA-002 13

courses of conduct adequately reflects the seriousness of the

offender's conduct.

(c) The offender's history of criminal conduct demonstrates that

consecutive sentences are necessary to protect the public from future

crime by the offender.

{¶35} Appellant concedes that the court made the findings required by the statute

to impose consecutive sentences, but argues that consecutive sentences are

disproportionate to the seriousness of his conduct. He argues that he had no criminal

history, none of his students he videotaped in the bathroom were aware that they were

being taped, and the only person who saw the videos was appellant.

{¶36} A felony sentence should be proportionate to the severity of the offense

committed so as not to “shock the sense of justice in the community.” State v. Chafin, 30

Ohio St.2d 13, 17, 282 N.E.2d 46; R.C. 2929.11(B). A defendant alleging

disproportionality in felony sentencing has the burden of producing evidence to “indicate

that his sentence is directly disproportionate to sentences given to other offenders with

similar records who have committed these offenses.” State v. Ewert, 5th Dist. Muskingum

No. CT2012–0002, 2012–Ohio–2671, ¶ 33, citing State v. Breeden, 8th Dist. No. 84663,

2005–Ohio–510, ¶ 81.

{¶37} Appellant did not present evidence that his sentence is directly

disproportionate to sentences given other offenders with similar records who have

committed the same offenses. Further, this Court has previously stressed the strong

interest of the government in safeguarding the physical and psychological well-being of

children and in preventing their sexual exploitation:
Ashland County, Case No. 16-COA-002 14

In Duhamel, supra, 2015–Ohio–3145, the court cited New York v.

Ferber, 458 U.S. 747, 756, 102 S.Ct. 3348, 73 L.Ed.2d 1113 (1982),

recognizing the government's interest in safeguarding the physical and

psychological well-being of children and in preventing their sexual

exploitation:

“Every video or image of child pornography on the internet

constitutes a permanent record of that particular child's sexual abuse. The

harm caused by these videos is exacerbated by their circulation. Id. The

videos in [appellant's] library show eight, nine, and ten-year old girls being

vaginally raped by adult men. Adult men are seen video-recording and

photographing young girls while they are being molested, raped, and

abused. These videos are far worse than solitary photographs of naked

children, which are themselves harmful to the child victims. [Appellant]

downloaded the videos at different times as part of a course of conduct.

Therefore, the record supports the court's finding that consecutive

sentences are proportionate to the seriousness of [appellant's] crimes, are

necessary to punish [appellant] for his multiple downloads of child

pornographic material, and to protect the public.” State v. Duhamel, 8th Dist.

Cuyahoga No. 102346, 2015–Ohio–3145, ¶ 55.

{¶38} State v. Starcher, 5th Dist. Stark No. 2015CA00058, 2015-Ohio-5250, ¶42.

{¶39} Further, the Ohio Supreme Court has recently stressed the seriousness of

child-nudity-oriented material, even if such material is not pornographic as defined by

statute:
Ashland County, Case No. 16-COA-002 15

This case revolves around R.C. 2907.323(A)(1), which prohibits the

creation of child-nudity-oriented material, whether or not pornographic. We

consider the difference between child-nudity-oriented material and child

pornography a matter of degree, not of kind. All the state interests that

apply to eliminating child pornography apply to eliminating child-nudity-

oriented material. Even if child-nudity-oriented material is less harmful to

the child depicted than child pornography, it is undeniably harmful. Even if

child-nudity-oriented material is less exploitative of a child than child

pornography, it is undeniably exploitative. Similarly, child-nudity-oriented

material leaves a permanent record that can haunt a child into adulthood

and provides an economic incentive to its purveyors and possessors.

{¶40} State v. Martin, Slip Opinion No. 2016-Ohio-7196, ¶12.

{¶41} In the instant case, appellant’s conduct went beyond the mere creation and

possession of child-nudity-oriented material. He created the videos by surreptitiously

taping his own students using the restroom. According to the information provided at the

sentencing hearing, appellant requested that he be moved to a kindergarten classroom,

which gave him access to the youngest children within the school system, as well as the

only classroom in the school district with a private restroom attached to the classroom.

As a kindergarten teacher, appellant occupied a position of trust, not only as to the

students entrusted to his care, but also to the families who entrusted their children to him.

Appellant violated that trust by his actions. The victim impact statements included in the

presentence investigation report filed in this case demonstrate the extreme emotional

harm to the parents of the children who were videotaped, and while most of the children
Ashland County, Case No. 16-COA-002 16

were unaware that they were taped, they experienced confusion and educational

disruption from appellant’s removal from their classroom during their kindergarten year.

Consecutive sentences were not disproportionate to appellant’s conduct in the instant

case.

{¶42} Further, while appellant argues in his brief that he could have committed the

crime of rape against his fellow teachers and not have received a fifty-six year sentence,

the concept of disproportionality relates to sentences received by other offenders who

have committed the same offenses, not to sentences received for different offenses. The

decision as to what sentences are appropriate for specific offenses or classes of offenses

is a legislative function, not a judicial function.

{¶43} The second assignment of error is overruled.

III.

{¶44} In his third assignment of error, appellant argues that his fine of $15,700, or

$100 per offense, is an abuse of discretion.

{¶45} The decision to impose or waive a fine rests within the sound discretion of

the court and will not be reversed on appeal absent an abuse of that discretion. State v.

Gipson, 80 Ohio St.3d 626, 634, 687 N.E.2d 750. (1998). The term abuse of discretion

connotes more than an error of law or of judgment; it implies that the court's attitude is

unreasonable, arbitrary or unconscionable. State v. Adams, 62 Ohio St.2d 151, 157, 404

N.E.2d 144 (1980).

{¶46} As this Court explained in State v. Perry, 5th Dist. No.2004-CA-00066,

2005-Ohio-85:
Ashland County, Case No. 16-COA-002 17

There are no express factors that must be taken into consideration

or findings regarding the offender's ability to pay that must be made on the

record.’ State v. Martin, 140 Ohio App.3d 326, 338, 747 N.E.2d 318, 2000-

Ohio-1942. Although a court may hold a hearing under R.C. 2929.18(E) ‘to

determine whether the offender is able to pay the [financial] sanction or is

likely in the future to be able to pay it,’ a court is not required to do so. State

v. Stevens (Sept. 21, 1998), 12th Dist. No. CA98-01-001, unreported

(‘although the trial court must consider the offender's ability to pay, it need

not hold a separate hearing on that issue’). ‘All that R.C. 2929.19(B)(6)

requires is that the trial court consider the offender's present and future

ability to pay.’ State v. Dunaway, 12th Dist. No. CA2001-12-280, 2003-Ohio-

1062, at 36; Martin, 140 Ohio App.3d at 33, 746 N.E.2d 642” Id. at *4-5, 746

N.E.2d 642. See also State v. Thompson, 5th Dist. No. 06-CA-62, 2008-

Ohio-435, at ¶ 19. While it would be preferable for the trial court to expressly

state on the record that it has considered a defendant's present and future

ability to pay a fine, it is not required. State v. Parker, 2nd Dist. No.

03CA0017, 2004-Ohio-1313, ¶ 42, citing State v. Slater, 4th Dist. No. 01

CA2806, 2002-Ohio-5343. “The court's consideration of that issue may be

inferred from the record under appropriate circumstances.” Id.

{¶47} The trial court made a finding that appellant had the future ability to pay a

financial sanction, which is supported by the information set forth in the PSI filed under

seal with this Court. Although in aggregate the fine appears large, the court noted that

$100 per offense is not a significant financial sanction. Sent. Tr. 41. Appellant presented
Ashland County, Case No. 16-COA-002 18

no evidence concerning his future ability to pay. The trial court did not abuse its discretion

in the fine imposed in this case.

{¶48} The third assignment of error is overruled.

{¶49} The judgment of the Ashland County Common Pleas Court is affirmed.

Costs are assessed to appellant.

By: Baldwin, J.

Farmer, P.J. concurs.

Hoffman, J. concurs separately.
Ashland County, Case No. 16-COA-002 19

Hoffman, J., concurring

{¶50} I concur in the majority’s analysis and disposition of Appellant’s first and

third assignments of error.

{¶51} I further concur in the majority’s disposition of Appellant’s second

assignment of error. However, I continue to maintain the disproportionality analysis under

R.C. 2929.14(C)(4) is different from the disproportionality analysis under R.C. 2929.11(B).

The former focuses on the defendant’s conduct whereas the latter focuses on the

defendant’s sentence compared to similar offenders.1

{¶52} Nevertheless, I concur because Appellant’s argument herein only alleges

disproportionality with respect to R.C. 2929.11(B). Accordingly, any further analysis of

the propriety of imposing consecutive sentences for any of the 172 individual counts

involving child nudity-oriented material is unnecessary.

1
For a further discussion, see my dissent in State v. Cooper, 5th Dist. Ashland App. No.
14-COA-039, 2016-Ohio-5064.