[Cite as State v. Pippin, 2017-Ohio-6970.]
IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO
STATE OF OHIO, : APPEAL NOS. C-160380
C-160381
Plaintiff-Appellee, : TRIAL NO. B-1300383
vs. :
O P I N I O N.
TONY PIPPIN, :
Defendant-Appellant. :
Criminal Appeals From: Hamilton County Court of Common Pleas
Judgment Appealed From Is: Affirmed
Date of Judgment Entry on Appeal: July 26, 2017
Joseph T. Deters, Hamilton County Prosecuting Attorney, and Philip R. Cummings,
Assistant Prosecuting Attorney, for Plaintiff-Appellee,
Bryan R. Perkins, for Defendant-Appellant.
OHIO FIRST DISTRICT COURT OF APPEALS
DETERS, Judge.
{¶1} Tony Pippin appeals his convictions for rape and pandering sexually-
oriented matter involving a minor, stemming from the discovery of videos on his cell
phone that showed him raping a 15-year-old girl. We hold that the video evidence
was admissible at trial because it was discovered pursuant to a lawful search warrant.
We also conclude that the court properly denied suppression motions without an
evidentiary hearing on the validity of the warrant. Finally, we hold that the court
properly sentenced Pippin. Therefore, we affirm the trial court’s judgment.
Background
{¶2} Police seized Pippin’s cell phone and other evidence from his residence
when they executed a search warrant issued on December 15, 2012. Police had
obtained the warrant during their investigation into multiple rape and burglary
offenses. After Pippin’s phone was seized, it was secured in the property room of the
Delhi Township Police Department.
{¶3} On December 18, 2012, Delhi Township Police Detective Adam L. Cox
sought a warrant from a Hamilton County Common Pleas Court judge to authorize
the search of the data contained within Pippin’s phone. Before driving from the
Hamilton County courthouse back to Delhi, Cox delivered the phone to the forensics
unit of the Cincinnati Police Division for extraction of the data.
{¶4} Cincinnati Police Officer Scott Radigan, a video and cell phone
forensics analyst, began preparing Pippin’s cell phone for data extraction. He
removed the back of the phone to determine its model number, and then made
adjustments to the phone settings to allow for the data transfer.
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OHIO FIRST DISTRICT COURT OF APPEALS
{¶5} After experiencing initial problems getting the data download to start
with his standard equipment, Radigan further examined the phone and opened the
photo gallery as part of his troubleshooting. He was eventually able to get the
extraction process started by using a different digital forensics product.
{¶6} Before the extraction was completed, Radigan got a call from Cox, who
told him to stop the extraction that was in progress. Radigan disconnected the
phone from the forensics equipment and pulled the battery out of the phone.
According to Cox, he had been about to fax a copy of the search warrant and affidavit
to Pippin’s attorney when he discovered that the judge had failed to sign the search
warrant.
{¶7} Because it was late in the day, Cox believed that the issuing judge was
unavailable, so he resubmitted the warrant to the judge the following morning. The
judge signed and dated it that day (December 19), and marked it “as of” December
18, 2012. Cox called Radigan and told him to go ahead with the data extraction.
{¶8} Data from the extraction indicated that the phone was next accessed
on December 20, 2012, the day that the data extraction was completed. A digital disc
containing the extracted data was delivered to Detective Cox. He reviewed the
information on the disc and discovered several videos depicting sexual acts with an
underage female. Using other data from the download, he was able to identify the
15-year-old victim.
{¶9} Pippin was charged in a 21-count indictment with multiple sex
offenses involving four different victims, as well as burglary, robbery, felonious
assault, and receiving stolen property. The trial court severed ten of the charges,
which related to the child victim depicted in the videos on Pippin’s cell phone.
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OHIO FIRST DISTRICT COURT OF APPEALS
{¶10} In his motions to suppress the videos on his cell phone, Pippin argued
that the police had searched the contents of his phone on December 18 without a
valid signed warrant. He asserted that the December 19 search warrant did not cure
the warrantless search of the phone that had occurred on December 18. Following a
hearing at which forensic experts testified, the trial court denied the motions. The
court found that Radigan’s aborted effort to download data from the phone on
December 18 did not constitute a search because there was no evidence that the data
partially extracted at the point of interruption was viewed or even viewable.
Therefore, the court concluded, the search of the phone occurred no earlier than
December 20, when the data was next accessed and the extraction was completed
pursuant to the signed December 19 search warrant.
{¶11} After the court denied his motions to suppress, Pippin entered pleas of
no contest to the ten charges. The court sentenced Pippin for six offenses but did not
dispose of four offenses, by merger or otherwise. We dismissed Pippin’s direct
appeal for lack of jurisdiction because the trial court’s judgment was not a final
order. See State v. Pippin, 1st Dist. Hamilton No. C-150061, 2016-Ohio-312.
{¶12} Thereafter, the trial court issued a sentencing entry that disposed of
the remaining four offenses. The court merged two offenses of sexual battery and
two offenses of unlawful sexual conduct with a minor with two rape offenses. The
court sentenced Pippin to consecutive eight-year prison terms for the rape offenses,
and ordered the terms to run consecutively to concurrent eight-year prison terms for
four counts of pandering sexually-oriented matter involving a minor, for a total of 24
years. Pippin now appeals.
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OHIO FIRST DISTRICT COURT OF APPEALS
Suppression of the Cell Phone Videos
{¶13} In his first assignment of error, Pippin argues that the trial court erred
by failing to suppress the contents of his cell phone. He contends that police
conducted the search of his phone in violation of his rights under the Fourth
Amendment to the United States Constitution and under Article I, Section 14, of the
Ohio Constitution.
{¶14} Pippin also asserts, for the first time, that the seizure of his cell phone
from his residence pursuant to the December 15 search warrant was unlawful.
However, in seeking to suppress the evidence against him, Pippin challenged the
constitutionality of the search of the phone’s contents, but not the seizure of the
phone itself. He did not challenge the validity of the December 15 search warrant in
the trial court, and cannot do so for the first time on appeal. See State v. Peagler, 76
Ohio St.3d 496, 500, 668 N.E.2d 489 (1996). Therefore, he has waived any
argument about the seizure of the phone for purposes of appeal. Id. Accordingly, we
address only the arguments regarding the phone’s contents.
{¶15} Appellate review of a motion to suppress presents a mixed question of
law and fact. State v. Burnside, 100 Ohio St.3d 152, 2003-Ohio-5372, 797 N.E.2d 71,
¶ 8. We must accept the trial court’s factual findings if they are supported by
competent, credible evidence, but we review de novo the trial court’s application of
the law to those facts. Id. As a general rule, questions of probable cause are
reviewed de novo on appeal. Ornelas v. United States, 517 U.S. 690, 699, 116 S.Ct.
1657, 134 L.Ed.2d 911 (1996).
{¶16} The Fourth Amendment to the United States Constitution protects
individuals against unreasonable governmental searches and seizures. Accord Ohio
Constitution, Article I, Section 14. Therefore, absent certain exceptions, police
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OHIO FIRST DISTRICT COURT OF APPEALS
officers must obtain a warrant before conducting a search. Franks v. Delaware, 438
U.S. 154, 164, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978). In the context of cell phones,
police officers must generally secure a warrant authorizing a search of data on the
phone before conducting such a search. See Riley v. California, ___ U.S. ___, 134
S.Ct. 2473, 2485, 189 L.Ed.2d 430 (2014); State v. Smith, 124 Ohio St.3d 163, 2009-
Ohio-6426, 920 N.E.2d 949, syllabus.
{¶17} Under the exclusionary rule, evidence seized in violation of the Fourth
Amendment may not be admitted against a defendant in a criminal prosecution,
subject to certain exceptions. Mapp v. Ohio, 367 U.S. 643, 655, 81 S.Ct. 1684, 6
L.Ed.2d 1081 (1961). In Ohio, the exclusionary rule applies to suppress evidence
seized pursuant to an unsigned search warrant. State v. Williams, 57 Ohio St.3d 24,
26, 565 N.E.2d 563 (1991) (a search warrant is void ab initio if it is not signed by a
judge before the search).
{¶18} Under Williams, any search of the contents of Pippin’s cell phone that
occurred pursuant to the unsigned December 18 warrant would necessarily be
unlawful and its fruits suppressed. See id. The trial court resolved this issue by
determining that no search had occurred before the lawful December 19 search
warrant was issued. In so deciding, the court did not address the state’s contention
that the “inevitable discovery” exception to the exclusionary rule applied.
Nonetheless, we hold that the exception applied and that the evidence was not
subject to exclusion.
{¶19} Under the inevitable-discovery exception to the exclusionary rule,
illegally obtained evidence is admissible at trial if it is established that the evidence
would have ultimately or inevitably been discovered during the course of a lawful
investigation. Nix v. Williams, 467 U.S. 431, 104 S.Ct. 2501, 81 L.Ed.2d 377 (1984);
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OHIO FIRST DISTRICT COURT OF APPEALS
State v. Perkins, 18 Ohio St.3d 193, 480 N.E.2d 763 (1985), syllabus. The state has
the burden to show within a reasonable probability that police officers would have
discovered the evidence by lawful means apart from the unconstitutional conduct.
Nix at 444; Perkins at 196.
{¶20} The United States Supreme Court has applied the inevitable-discovery
doctrine where police officers followed a potentially illegal search with a later search
pursuant to a valid warrant that was wholly independent of the initial illegal entry.
See Murray v. United States, 487 U.S. 533, 541-543, 108 S.Ct. 2529, 101 L.Ed.2d 472
(1988) (remanding the case for consideration of the inevitable-discovery exception
where police conducted an unlawful warehouse search but later obtained a search
warrant and conducted a lawful search); Segura v. United States, 468 U.S. 796, 813-
816, 104 S.Ct. 3380, 82 L.Ed.2d 599 (1984) (illegal entry on premises by police did
not require suppression of evidence later discovered at the premises when executing
a search warrant obtained on information unconnected with the initial entry). The
exception applies when “evidence discovered during an illegal search would have
been discovered during a later legal search and the second search inevitably would
have occurred in the absence of the first.” United States v. Keszthelyi, 308 F.3d 557,
574 (6th Cir.2002).
{¶21} Ohio courts have applied the inevitable-discovery exception under
certain circumstances to admit evidence seized from digital camera memory cards
and cell phones in cases where police had initially examined the contents of the items
without authority. In those cases, the courts determined that the evidence would
have been inevitably discovered in the course of a lawful investigation. See State v.
Workman, 2015-Ohio-5049, 52 N.E.3d 286, ¶ 46 (3d Dist.); State v. Jackson, 11th
Dist. Trumbull No. 2006-T-0123, 2007-Ohio-6932, ¶ 35.
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OHIO FIRST DISTRICT COURT OF APPEALS
{¶22} In Workman, police officers sought and were granted a warrant
authorizing the search of the contents of both a cell phone and a secure digital (“SD”)
memory card from a camera. A forensics analyst discovered a second SD card as he
was examining the evidence delivered to him and assumed that he was authorized to
search both SD cards. Workman at ¶ 31.
{¶23} The Third Appellate District held that photographs obtained from the
search of the second SD card were admissible at trial because the state showed by a
reasonable probability that the photographs would have been inevitably discovered
during the course of a lawful investigation. Id. at ¶ 42. The court cited the
investigating detective’s testimony that he would have sought a warrant to search the
second SD card had he known it existed. The court then concluded that the same
facts demonstrating probable cause to search the cell phone and the first SD card
“would have been used to establish the requisite probable cause to secure a search
warrant to search the second SD card.” Id. at ¶ 44. The court stated:
This is not a case where law enforcement could have obtained a
warrant, yet chose not to. * * * Applying the inevitable-discovery
doctrine to this case prevents the State from being put in a worse
position as a result of the wrongful search because the evidence would
have been inevitably discovered by lawful means.
(Citations omitted.) Id. at ¶ 45.
{¶24} In Jackson, the Eleventh Appellate District similarly held that the
exclusionary rule did not apply to bar the contents of the defendant’s cell phones in a
prosecution for rape and pandering obscenity involving a minor. Jackson, 11th Dist.
Trumbull No. 206-T-0123, 2007-Ohio-6932, at ¶ 35. The court held that even
though police officers had conducted an unlawful warrantless search of the phones,
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OHIO FIRST DISTRICT COURT OF APPEALS
the contents of the phones would have been inevitably discovered pursuant to the
lawful warrant that the officers secured soon after the initial search. Id. The court
stated:
This is not a case where the police illegally searched and seized an
item, but rather, the phones were already in lawful custody and a
search warrant was pending. Most importantly, the officers had
grounds for the issuance of a warrant to search the phones and had
taken steps to procure a warrant.
Id. at ¶ 33.
{¶25} In this case, we assume for the sake of argument that Officer Radigan’s
actions on December 18 constituted an unlawful warrantless search. We hold that
even if an unlawful search occurred, the state proved by a reasonable probability that
the videos on Pippin’s phone would have been, and in fact were, inevitably
discovered pursuant to the lawful December 19 warrant. In seeking the December 19
warrant, the police relied on the same facts used to establish the requisite probable
cause to secure the December 18 warrant, and included no information learned from
Officer Radigan’s initial processing attempt. See Workman, 2015-Ohio-5049, 52
N.E.3d 286, at ¶ 44; Jackson at ¶ 33. Therefore, the unlawful search “could not
affect the issuing judge’s decision to issue a warrant because the search warrant
affidavit included no information gleaned from the unlawful search.” See United
States v. Witherspoon, 467 Fed.Appx. 486, 491 (6th Cir.2012). Therefore, the
contents of the phone were admissible at trial under the inevitable-discovery
exception. We recognize that we are deciding the suppression issue on grounds
different from those relied on by the trial court, but our decision rests squarely on
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OHIO FIRST DISTRICT COURT OF APPEALS
evidence adduced at the suppression hearing, and the trial court had an opportunity
to address the issue. See Peagler, 76 Ohio St.3d at 501, 668 N.E.2d 489.
{¶26} Pippin also asserts that the December 18 search warrant was issued
without probable cause. We will presume that his argument applies also to the
December 19 warrant, which was issued upon the same affidavit that supported the
unsigned December 18 warrant.
{¶27} In determining the sufficiency of probable cause in an affidavit
submitted in support of a search warrant, “[t]he 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, * * * there is a fair probability that
contraband or evidence of a crime will be found in a particular place.” State v.
George, 45 Ohio St.3d 325, 544 N.E.2d 640 (1989), paragraph one of the syllabus,
quoting Illinois v. Gates, 462 U.S. 213, 238-239, 103 S.Ct. 2317, 76 L.Ed.2d 527
(1983). Great deference must be given to a magistrate’s determination of probable
cause, and “doubtful or marginal cases in this area should be resolved in favor of
upholding the warrant.” George at paragraph two of the syllabus.
{¶28} Here, as we will discuss more fully in our analysis of the second
assignment of error, the warrant affidavit amply supported the issuing magistrate’s
determination of probable cause. The affidavit set forth facts establishing a fair
probability that evidence relating to the sex and burglary offenses would be found on
Pippin’s phone.
{¶29} Finally, Pippin challenges the particularity of the search warrant. He
asserts that the warrant failed to identify with particularity what the police were
looking for in his cell phone.
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OHIO FIRST DISTRICT COURT OF APPEALS
{¶30} In assessing whether a warrant meets the particularity requirement of
the Fourth Amendment, courts must consider “whether the warrant provides
sufficient information to ‘guide and control’ the judgment of the executing officer in
what to seize,” and “whether the category as specified is too broad in that it includes
items that should not be seized.” (Internal citations omitted.) State v. Castagnola,
145 Ohio St.3d 1, 2015-Ohio-1565, 46 N.E.3d 638, ¶ 79. Even if a search warrant
includes broad categories of items to be seized, it “may nevertheless be valid when
the description is ‘as specific as the circumstances and the nature of the activity
under investigation permit.’ ” Id. at ¶ 80, quoting Guest v. Leis, 255 F.3d 325, 336
(6th Cir.2001).
{¶31} The December 19 search warrant set forth the issuing judge’s findings
that (1) there was probable cause to believe that Pippin had committed rape and
burglary offenses, (2) there was probable cause to believe that evidence relating to
the rape and burglary offenses would be obtained through a search of the cell phone,
and (3) in particular, “the evidence seized will reveal details of the involvement of the
participants, identities of victims, owners, and evidence of the alleged violations.”
The warrant particularly described Pippin’s cell phone by brand, model, serial, and
assigned telephone number, and authorized a search of the phone for “Electronic
Serial Numbers, Mobile Identification Numbers, any and all other data that has been
programmed into and/or received or recorded by” the device.
{¶32} In this case, the warrant was neither overbroad nor insufficiently
particular. The warrant specifically identified the cell phone to be searched and
limited the scope of the search to evidence of particular crimes. See Castagnola at ¶
79. The language of the warrant provided sufficient guidance to the police to search
for only the items to be seized: evidence relating to the crimes of rape and burglary.
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OHIO FIRST DISTRICT COURT OF APPEALS
“There is nothing inherently improper about the authorization to search the entire
contents of the phone[s], provided * * * that there is a fair probability of finding
evidence related to the [listed crime].” State v. Knoefel, 11th Dist. Lake No. 2014-L-
088, 2015-Ohio-5207, ¶ 128.
{¶33} Consequently, we hold that the trial court properly denied Pippin’s
motions to suppress the contents of his cell phone. We overrule the first assignment
of error.
Franks v. Delaware Hearing
{¶34} In his second assignment of error, Pippin argues that the trial court
erred by not conducting an evidentiary hearing on his challenge to the veracity of
statements in the affidavit supporting the search warrant for the contents of his cell
phone. He contends that a hearing was required because he had sufficiently
established that the warrant affidavit contained misleading and false statements.
{¶35} After a search warrant has been issued and executed, a defendant may,
in limited circumstances, challenge the truthfulness of factual statements made in an
affidavit supporting the warrant. Franks, 438 U.S. at 155-156, 98 S.Ct. 2674, 57
L.Ed.2d 667. To mandate an evidentiary hearing, a defendant must make a
substantial preliminary showing that an affiant knowingly and intentionally, or with
reckless disregard for the truth, included a false statement in the warrant affidavit,
and that the false statement was necessary to the finding of probable cause. Id.
{¶36} Even if a defendant makes a “substantial preliminary showing of a
knowing, intentional, or reckless falsity,” he is not automatically entitled to an
evidentiary hearing. State v. Roberts, 62 Ohio St.2d 170, 178, 405 N.E.2d 247
(1980); see Franks at 171-172; State v. Jordan, 1st Dist. Hamilton No. C-060336,
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OHIO FIRST DISTRICT COURT OF APPEALS
2007-Ohio-3449, ¶ 11. If, after the challenged statements are disregarded, the
warrant affidavit contains sufficient material to support a finding of probable cause,
no hearing is required. Roberts at 178; Franks at 171-172.
{¶37} In this case, without determining whether Pippin had met his initial
burden to show that the affiant had wrongfully included false statements in the
warrant affidavit, the trial court set aside the allegedly false material and concluded
that the remainder of the affidavit sufficiently supported a finding of probable cause.
{¶38} The trial court’s conclusion is supported by the record. After redaction
of the challenged statements, the affidavit set forth that on September 1, 2012, a
woman left a certain bar in White Oak, stopped for gas at a Speedway station, and
then drove to her Delhi Township home. Once home, a man with a semiautomatic
pistol attacked and raped her. Surveillance videos from the Speedway and other
businesses showed an older style, white or light grey Jeep Cherokee that had pulled
next to a pump at a BP station across the street. No one got out of the vehicle or
pumped gas before the vehicle moved to another lot and remained there until the
woman had finished at Speedway.
{¶39} On September 8, 2012, while police were conducting surveillance near
the same White Oak bar, a police officer stopped Pippin for a traffic violation. The
officer believed that Pippin’s Jeep Cherokee was similar to a photo of the Jeep
Cherokee at the BP station on the night of the Delhi rape.
{¶40} On September 19, 2012, a GPS device was attached to Pippin’s vehicle
on the authority of search warrants, and police began tracking its movements.
{¶41} On October 26, 2012, Pippin contacted police about being a
confidential informant. He told them that he carried a simulator 9 mm gun. He
“Googled” a picture of the simulator gun on his cell phone and officers noted that it
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OHIO FIRST DISTRICT COURT OF APPEALS
looked like a real 9 mm semiautomatic firearm. Pippin initially told them that he
drove a grey 1989 Jeep Cherokee, but admitted that he had painted it blue.
{¶42} On November 21, 2012, a police officer took a burglary report on a
home on Squirrel Creek Lane in Colerain Township. The property stolen in the
burglary included a cell phone, credit cards, and a camera.
{¶43} On December 15, 2012, police conducted a search of Pippin’s residence
pursuant to a search warrant. The camera stolen during the Squirrel Creek Lane
burglary was recovered in Pippin’s bedroom. The police also recovered Pippin’s cell
phone and transported it to the property room of the Delhi Township Police station.
{¶44} The affiant, Detective Cox, had experience and training in the
investigation of burglary and rape offenses. Through his experience and training,
Cox learned that suspects who engage in that type of criminal activity frequently used
cell phones and other data storage devices to maintain records or to conduct
communications related to their offenses. He expected that the search of the data in
Pippin’s phone would (1) establish that Pippin had committed the burglary offense;
(2) contain pictures or video that may have been taken during the offenses; and (3)
reveal the identity of persons to whom Pippin may have sold property taken in the
burglary.
{¶45} Following our review of the redacted warrant affidavit, we conclude
that it sufficiently supported the issuing magistrate’s determination of probable
cause. See George, 45 Ohio St.3d at 329, 544 N.E.2d 640; Gates, 462 U.S. at 238,
103 S.Ct. 2317, 76 L.Ed.2d 527. The remainder of the affidavit established a fair
probability that evidence of the burglary or rape offenses would be found in the
contents of Pippin’s cell phone. Therefore, any inaccuracies in the affidavit were
irrelevant, and the trial court properly denied Pippin’s request for an evidentiary
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OHIO FIRST DISTRICT COURT OF APPEALS
hearing on the December 18 search warrant. See Franks, 438 U.S. at 172, 98 S.Ct.
2674, 57 L.Ed.2d 667, fn. 8. We overrule the second assignment of error.
Merger
{¶46} In his third assignment of error, Pippin argues that the trial court
erred by failing to merge allied offenses of similar import. He contends that the
court should have merged the two rape offenses into a single rape offense and the
four pandering offenses into a single pandering offense.
{¶47} Under R.C. 2941.25(B), a defendant may be convicted of multiple
offenses arising from the same conduct if any one of the following is true: (1) the
conduct constitutes offenses of dissimilar import, (2) the conduct shows that the
offenses were committed separately, or (3) the conduct shows that the offenses were
committed with separate animus. State v. Ruff, 143 Ohio St.3d 114, 2015-Ohio-995,
34 N.E.3d 892, paragraph three of the syllabus.
{¶48} The defendant bears the burden of demonstrating that he is entitled to
merger at sentencing pursuant to R.C. 2941.25. State v. Washington, 137 Ohio St.3d
427, 2013-Ohio-4982, 999 N.E.2d 661, ¶ 18, citing State v. Mughni, 33 Ohio St.3d
65, 67, 514 N.E.2d 870 (1987). We review the trial court’s merger determination de
novo. See State v. Williams, 134 Ohio St.3d 482, 2012-Ohio-5699, 983 N.E.2d 1245,
¶ 28.
{¶49} With respect to the rape offenses, Pippin argues that both counts of
rape relate to the “same act, same day, same location, and same victim.” However,
the record demonstrates that, although both rape counts involved the same type of
sexual activity—fellatio—and were committed within a short time of each other, there
were two separate and distinct acts of penetration, separated by significant
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OHIO FIRST DISTRICT COURT OF APPEALS
intervening acts. See State v. Jones, 78 Ohio St.3d 12, 14, 676 N.E.2d 80 (1997). The
first act of rape occurred while the girl was apparently semi-conscious. That act was
followed by a withdrawal from the girl’s mouth, the girl’s apparent loss of
consciousness, and then the defendant’s forceful penetration of the unconscious
girl’s mouth.
{¶50} Next, Pippin asserts that the four counts of pandering related to four
video files found on his phone that recorded the same course of conduct. However,
multiple convictions are allowed for each individual video file because a separate
animus exists every time a separate image or file is created and saved. See State v.
Stone, 1st Dist. Hamilton No. C-040323, 2005-Ohio-5206, ¶ 9; State v. Hendricks,
8th Dist. Cuyahoga No. 92213, 2009-Ohio-5556, ¶ 35; State v. Eal, 10th Dist.
Franklin No. 11AP-460, 2012-Ohio-1373, ¶ 93; State v. Starcher, 5th Dist. Stark No.
2015CA00058, 2015-Ohio-5250, ¶ 35; State v. Lucicosky, 7th Dist. Mahoning No. 16
MA 0112, 2017-Ohio-2960, ¶ 23.
{¶51} Therefore, the two counts of rape and the four counts of pandering
were committed separately for purposes of R.C. 2941.25, and the trial court did not
err by failing to merge them for sentencing. We overrule the third assignment of
error.
Consecutive Sentences
{¶52} In his fourth assignment of error, Pippin argues that the trial court
erred by imposing consecutive sentences. We will not vacate or modify a felony
sentence unless we clearly and convincingly find either that the record does not
support the trial court’s findings under the relevant statutes or that the sentence is
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OHIO FIRST DISTRICT COURT OF APPEALS
otherwise contrary to law. State v. Marcum, 146 Ohio St.3d 516, 2016-Ohio-1002,
59 N.E.3d 1231, ¶ 1.
{¶53} Here, the trial court made the consecutive-sentencing findings
required under R.C. 2929.14(C), announced the findings at the sentencing hearing,
and incorporated the findings into its sentencing entry. See State v. Bonnell, 140
Ohio St.3d 209, 2014-Ohio-3177, 16 N.E.3d 659, syllabus; State v. McGee, 1st Dist.
Hamilton No. C-150496, 2016-Ohio-7510, ¶ 32. Therefore, the court did not err in
imposing consecutive sentences. We overrule the fourth assignment of error and
affirm the judgment of the trial court.
Judgment affirmed.
CUNNINGHAM, P.J., and MILLER, J., concur.
Please note:
The court has recorded its own entry on the date of the release of this opinion.
17
State v. Pippin
Court: Ohio Court of Appeals
Date filed: 2017-07-26
Citations: 2017 Ohio 6970, 94 N.E.3d 1186
Copy CitationsCombined Opinion