State v. Suder

[Cite as State v. Suder, 2021-Ohio-465.]

IN THE COURT OF APPEALS

TWELFTH APPELLATE DISTRICT OF OHIO

CLERMONT COUNTY

STATE OF OHIO, :

Appellee, : CASE NO. CA2020-06-034
CA2020-06-035
:
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: 2/22/2021

JOSEPH L. SUDER, :

Appellant. :

CRIMINAL APPEAL FROM CLERMONT COUNTY COURT OF COMMON PLEAS
Case Nos. 2019CR0811; 2019-CR-00871

D. Vincent Faris, Clermont County Prosecuting Attorney, Nicholas A. Horton, 76 South
Riverside Drive, 2nd Floor, Batavia, Ohio 45103, for appellee

W. Stephen Haynes, Clermont County Public Defender, Robert F. Benintendi, 302 East
Main Street, Batavia, Ohio 45103, for appellant

S. POWELL, J.

{¶ 1} Appellant, Joseph L. Suder, appeals his conviction in the Clermont County

Court of Common Pleas after he pled guilty to one count of trafficking in persons, two counts

of rape, three counts of gross sexual imposition, and four counts of illegal use of a minor in

nudity-oriented material for which he was sentenced to an indefinite, aggregate minimum

term of 74 years in prison with a potential maximum term of 86 years in prison in accordance
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with the newly enacted Reagan Tokes Law. For the reasons outlined below, we affirm.

{¶ 2} On January 29, 2020, Suder entered a knowing, intelligent, and voluntary

guilty plea to the ten above-named offenses. These charges were brought under two

separate case numbers: Case No. 2019-CR-00811 and Case No. 2019-CR-00871.

According to the state's recitation of facts elicited at Suder's consolidated plea hearing, the

charges were based on the following:

Case No. 19CR811

Count I – Gross Sexual Imposition

Defendant, on or about January 1st, 2019, through August 1st,
2019, in Clermont County Ohio, had sexual contact with another
when the other person was less than 13 years of age.
Specifically, the defendant touched the penis of child, E.D., date
of birth, 2/28/201[2]. And that took place at a residence in
Milford, Ohio.

Count II – Rape

Defendant, on or about March 22nd, 2019, through August 1st,
2019, in Clermont County, Ohio, did engage in sexual conduct
with minor child, E.D., date of birth, 2/28/2012, and purposely
compelled to submit by force or threat of force, to that sexual
conduct. Specifically, Defendant inserted his penis into the
mouth of child victim E.D.

Case No. 19CR871

Count I – Rape

Joseph L. Suder, on or about the first day of June, 2019, through
the first day of August, 2019, in Clermont County, Ohio, did
engage in sexual conduct with minor child, B.D., date of birth,
3/15/2011, and purposely compelled B.D. to submit to the
sexual conduct by force or threat of force. A photo collected
from Defendant's phone depicts the defendant inserting his
penis into the vagina of B.D.

Count IV – Gross Sexual Imposition

Joseph L. Suder, on or about the first day of June 2019, through
the first day of August 2019, in Clermont County, Ohio did

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engage in sexual contact with minor child, B.D., date of birth
3/15/2011, who was under 13 at the time of the offense.
Specifically, Defendant put his penis on or near B.D.'s vagina.
This occurred separately from the incident of inserting his penis
into her vagina.

Count V – Gross Sexual Imposition

Joseph L. Suder, on or about the first day of June 2019, through
the first day of August 2019, in Clermont County, Ohio, did
engage in sexual contact with minor child, B.D., again, under
the age of 13 at the time of the offense. Specifically, Defendant
used his hands to touch and manipulate B.D.'s vagina. And
again, Your Honor, this occurred separately from the incident of
inserting his penis into her vagina and from the incident of gross
sexual imposition of putting the penis on or near her vagina.

Counts VII, VIII, IX, and X – Illegal Use of a Minor in Nudity-Oriented Material

Defendant, Joseph L. Suder, on or about the first day of June
2019, through the first day of August 2019, in Clermont County,
Ohio, did photograph a minor, was not the person's child, or a
ward of the State, in the state of nudity or create, direct,
produce, or transfer any material or performance that shows the
minor in the state of nudity. Specifically, multiple photos
depicting minor children in various states of nudity were
collected from Defendant's electronic devices.

{¶ 3} Describing those photographs further, the state noted the following as it

relates to each of the four photographs leading to those four charges:

(1) Count VII is a photo of minor child, B.D., showing
Defendant's penis on B.D.'s vaginal area, taken in her bedroom.
Defendant identified B.D. in the picture.

(2) Count VIII is a photo of B.D.'s vaginal area with Defendant
spreading B.D.'s vaginal opening with his hands. Defendant
admitted, and also identified minor child, B.D.

(3) Count IX is a photo of minor children, V.S. and E.D.,
together, both of whom are posing nude. Defendant identified
V.S. and E.D. and admitted that he took the photo.

(4) Count X is a photo of E.D., minor child, in a state of nudity.
Defendant identified E.D. and admitted that he took the photo.

{¶ 4} After describing the contents of each of these four photographs, the state then

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noted that "[e]ach of those photos in Counts VII through X were photos taken at separate

and distinct times, Your Honor."

Count L – Trafficking in Persons

Joseph L. Suder, on our about the first day of June 2019,
through the first day August 2019, in Clermont County, Ohio,
knowingly recruited, isolated, lured, or harbored minor children
E.D., date of birth, 2/28/2012; B.D. – a minor child B.D., date of
birth, 3/15/2011; and minor child, V.S., date of birth, 8/6/2013,
two of whom were not his biological children, and photographed
them in lewd, sexually oriented, and obscene positions, all of
which depicted the children in various states of nudity.

{¶ 5} The state then continued and stated:

Some of the photos depict a minor child and Joseph Suder
engaging in sex acts. Some show the children completely nude.
And others show the children nude in positions posing together.
Defendant, himself, * * * directed and produced an abundance
of the material that shows the minor in these positions. He also
– excuse me – also transferred that material through an online
app. Defendant admitted that he took these explicit photos and
that he traded them to others, specifically, a [W.B.].

{¶ 6} Following the state's recitation of facts, the trial court addressed Suder and

asked him whether he had "any disagreements with anything that the Prosecutor has

stated?" Suder responded, "No, Your Honor." The trial court then asked Suder if the

allegations contained within the state's recitation of facts were true. Suder responded, "Yes,

Your Honor."

{¶ 7} On February 14, 2020, Suder filed a motion for merger. In his motion, Suder

argued that the single count of trafficking in persons was an allied offense of similar import

subject to merger with any one of the four counts of illegal use of a minor in nudity-oriented

material to which he pled guilty. That same day, Suder also filed a motion requesting the

trial court declare and strike as unconstitutional the indefinite sentencing provisions set forth

in the newly enacted Reagan Tokes Law. The trial court overruled both of Suder's motions

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and thereafter sentenced Suder to an indefinite, aggregate minimum term of 74 years in

prison with a potential maximum term of 86 years in prison.

{¶ 8} In reaching its decision overruling Suder's motion for merger, the trial court

stated the following:

In this situation, the children were lured or harbored and Mr.
Suder knew that he was going to compel them in the future [to
engage in a performance that is obscene, sexually oriented, or
nudity oriented, or be a model or participant in the production of
material that is obscene, sexually oriented, or nudity oriented. It
may have been shortly after he was able to succeed in his luring
or harboring of these children. But nevertheless, it was in the
future. And once he lured them – once he harbored them, it's
no defense that he said, well, I didn't do it. I quit. He's not being
charged with the underlying offenses of nudity oriented or that,
but the offense [of trafficking in persons] is completed. And I
believe that once he has them in his grasp, so to speak as I've
explained, that [the offense of trafficking in persons] is
completed. And what flows after that is a separate offense [of
illegal use of a minor in nudity-oriented material].

{¶ 9} Continuing, the trial court stated:

And when you think about this – kind of still frame by still frame,
as I like to say. He lures these children in, harbors these
children – they're fully clothed. No question. They're fully
clothed. He gets them from someone – the spouse – his ex-
spouse or whomever – and they're placed in his car. He takes
them home. And he knows what he's going to do, because
that's what he did. He knows that once he has them in [his]
grasp, I'm going to do this. Then, he has totally separate animus
of stripping them – of taking their clothes off. I mean, that's –
they're totally separate offenses. And consequently, I'll deny
your motion for merger at this point.

{¶ 10} Suder now appeals his conviction, raising two assignments of error for review.

{¶ 11} Assignment of Error No. 1:

{¶ 12} THE TRIAL COURT ERRED IN FINDING THAT TRAFFICKING IN

PERSONS AND ILLEGAL USE OF A MINOR IN NUDITY-ORIENTED MATERIAL WERE

NOT ALLIED OFFENSES OF SIMILAR IMPORT.

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{¶ 13} In his first assignment of error, Suder argues the trial court erred by finding

the single count of trafficking in persons was not an allied offense of similar import subject

to merger with any one of the four counts of illegal use of a minor in nudity-oriented material

to which Suder pled guilty. We disagree.

{¶ 14} Pursuant to R.C. 2941.25, Ohio's allied-offenses statute, the imposition of

multiple punishments for the same criminal conduct is prohibited. State v. Conrad, 12th

Dist. Butler No. CA2018-01-016, 2018-Ohio-5291, ¶ 43. However, the defendant may be

convicted and sentenced for multiple offenses if: "'(1) the offenses are dissimilar in import

or significance – in other words, each offense caused separate, identifiable harm, (2) the

offenses were committed separately, and (3) the offenses were committed with separate

animus or motivation.'" State v. Morris, 12th Dist. Butler No. CA2019-12-205, 2020-Ohio-

4103, ¶ 14, quoting State v. Ruff, 143 Ohio St.3d 114, 2015-Ohio-995, ¶ 25. "'An affirmative

answer to any of the above will permit separate convictions.'" State v. Robinson, 12th Dist.

Butler No. CA2014-12-256, 2015-Ohio-4649, ¶ 40, quoting Ruff at ¶ 31. "'The evidence at

trial or during a plea or sentencing hearing will reveal whether the offenses have similar

import.'" State v. Slamka, 12th Dist. Butler No. CA2018-10-200, 2019-Ohio-3317, ¶ 29,

quoting Ruff at ¶ 26.

{¶ 15} Suder pled guilty to one count of trafficking in persons. This single charge

was in violation of R.C. 2905.32(A)(1). Pursuant to that statute:

(A) No person shall knowingly recruit, lure, entice, isolate,
harbor, transport, provide, obtain, or maintain, or knowingly
attempt to recruit, lure, entice, isolate, harbor, transport,
provide, obtain, or maintain, another person if * * *:

(1) The offender knows that the other person will be * * *
compelled to * * * engage in a performance that is
obscene, sexually oriented, or nudity oriented, or be a
model or participant in the production of material that is
obscene, sexually oriented, or nudity oriented.

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{¶ 16} Suder also pled guilty to four counts of illegal use of a minor in nudity-oriented

material. These four charges were in violation of R.C. 2907.323(A)(1). Pursuant to that

statute:

(A) No person shall * * *:

(1) Photograph any minor or impaired person 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 or impaired person in a state of
nudity * * *.

{¶ 17} Suder argues the trial court erred by finding the single count of trafficking in

persons was not an allied offense of similar import subject to merger with any one of the

four counts of illegal use of a minor in nudity-oriented material. This is because, according

to Suder, (1) there was no separate and identifiable harm caused to the victims; (2) "the

two 'conducts' – luring and taking (photographs) – did not occur separately;" and (3) the

animus, or immediate motive, was "identical" for each offense, i.e., to acquire nude

photographs of the child victims.

{¶ 18} However, as the trial court correctly noted when denying Suder's motion for

merger, "if one offense is completed before the other begins, then 'the offenses are

considered separately for sentencing purposes even though the two offenses may have

been committed in close proximity in time.'" State v. Clowers, 12th Dist. Clermont No.

CA2019-01-009, 2019-Ohio-4629, ¶ 30, quoting State v. Fields, 12th Dist. Clermont No.

CA2014-03-025, 2015-Ohio-1345, ¶ 18; State v. Lane, 12th Dist. Butler No. CA2013-05-

074, 2014-Ohio-562, ¶ 16 ("[b]ecause one offense was completed before the other offense

occurred, [the] two offenses were committed separately for purposes of R.C. 2941.25[B]

notwithstanding their proximity in time and that one was committed in order to commit the

other"). Such is the case here.

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{¶ 19} Based on the plain language found in R.C. 2905.32(A)(1), the crime of

trafficking in persons is complete as soon as the defendant knowingly recruits, lures,

entices, isolates, harbors, transports, provides, obtains, or maintains another person

knowing that other person will be compelled to engage in a performance that is obscene,

sexually oriented, or nudity oriented, or be a model or participant in the production of

material that is obscene, sexually oriented, or nudity oriented. Suder pled guilty to

knowingly recruiting, isolating, luring, or harboring B.D., E.D., and V.S., knowing that the

child victims would be photographed in lewd, sexually oriented, and obscene positions, all

of which depicted them in various states of nudity. Therefore, given the plain language of

the trafficking in persons statute, such conduct clearly constitutes a violation of R.C.

2905.32(A)(1).

{¶ 20} After knowingly recruiting, isolating, luring, or harboring B.D., E.D., and V.S.,

knowing that the child victims would be photographed in lewd, sexually oriented, and

obscene positions, all of which depicted them in various states of nudity, Suder then did, in

fact, photograph B.D., E.D., and V.S., two of whom were not Suder's biological children, in

a state of nudity, or created, directed, produced, or transferred any material or performance

that showed B.D., E.D., and V.S., in a state of nudity. This includes (1) a photograph of

B.D. showing Suder's penis on B.D.'s vaginal area; (2) a photograph of B.D.'s vaginal area

with Suder spreading B.D.'s vaginal opening with his hands; (3) a photograph of V.S. and

E.D., together, both of whom are posing nude; and (4) a photograph of E.D. in a state of

nudity. This conduct is clearly prohibited by the language set forth in R.C. 2907.323(A)(1),

a statute that prohibits the illegal use of a minor in nudity-oriented material.

{¶ 21} The single trafficking in persons offense is not allied offense of similar import

subject to merger with any of the four illegal use of a minor in nudity-oriented material

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offenses. This is because, as noted above, the conduct giving rise to the single trafficking

in persons offense was completed prior to the conduct underlying any of the four illegal use

of a minor in nudity-oriented material offenses began. This results in separate conduct for

separate offenses. See, e.g., State v. Back, 12th Dist. Butler Nos. CA2015-03-037 and

CA2015-03-038, 2015-Ohio-4447, ¶ 12 (burglary and theft of a firearm were not allied

offenses of similar import because the burglary offense was completed once the offender

was inside the garage, with the requisite intent, whereas the theft offense did not occur until

later, when the offender physically removed the firearm from the garage). Therefore,

because the offenses occurred separately, one before the others, the trial court did not err

by finding the single count of trafficking in persons was not an allied offense of similar import

subject to merger with any one of the four counts of illegal use of a minor in nudity-oriented

material. Accordingly, finding no error in the trial court's decision to deny Suder's motion

for merger, Suder's first assignment of error lacks merit and is overruled.

{¶ 22} Assignment of Error No. 2:

{¶ 23} THE TRIAL COURT ERRED IN FINDING THE PROVISIONS OF S.B. 201

(THE REAGAN TOKES ACT) CONSTITUTIONAL.1

{¶ 24} In his second assignment of error, Suder argues the trial court erred by finding

the indefinite sentencing scheme set forth in the Reagan Tokes Law was constitutional in

that it did not violate his right to due process or the separation-of-powers doctrine. This

court, however, has already determined that the Reagan Tokes Law does not violate an

1. Unlike the appellant in State v. Alexander, 12th Dist. Butler No. CA2019-12-204, who did not raise any
constitutional challenge to the Reagan Tokes Law either before or after the trial court issued its sentencing
decision, because we found the appellant in State v. Guyton, 12th Dist. Butler No. CA2019-12-203, 2020-
Ohio-3837, preserved his challenge to the constitutionality of the Reagan Tokes Law by making a general,
oral objection after the trial court imposed its sentence, Suder challenging the constitutionality of the Reagan
Tokes Law via a written motion filed with the trial court prior to sentencing was sufficient to preserve this issue
for appeal.
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offender's due process rights. See State v. Guyton, 12th Dist. Butler No. CA2019-12-203,

2020-Ohio-3837, ¶ 17 (the Reagan Tokes Law "does not run afoul of an offender's due

process rights guaranteed by the Fifth and Fourteenth Amendments to the United States

Constitution and Article I, Section 16 of the Ohio Constitution").

{¶ 25} This court also finds the Reagan Tokes law does not violate the separation-

of-powers doctrine. As originally stated by the Second District Court of Appeals in State v.

Ferguson, 2d Dist. Montgomery No. 28644, 2020-Ohio-4153, the Reagan Tokes Law is

consistent with established Ohio Supreme Court authority, which has held that "when the

power to sanction is delegated to the executive branch, a separation-of-powers problem is

avoided if the sanction is originally imposed by a court and included in its sentence." Id. at

¶ 23, citing Hernandez v. Kelly, 108 Ohio St.3d 395, 2006-Ohio-126, ¶ 18-20, citing State

v. Jordan, 104 Ohio St.3d 21, 2004-Ohio-6085, ¶ 19, citing Woods v. Telb, 89 Ohio St.3d

504, 2000-Ohio 171 (holding that the postrelease control statute did not violate the

separation-of-powers doctrine).

{¶ 26} The Second District has reiterated this holding several times. See State v.

Barnes, 2nd Dist. Montgomery No. 28613, 2020-Ohio-4150, ¶ 36 (Reagan Tokes Law does

not violate the separation-of-powers doctrine); State v. Leet, 2nd Dist. Montgomery No.

28670, 2020-Ohio-4592, ¶ 15 (Reagan Tokes Law does not violate the separation-of-

powers doctrine); and State v. Sinkhorn, 2d Dist. Clark No. 2019-CA-79, 2020-Ohio-5359,

¶ 35 (Reagan Tokes Law does not violate the separation-of-powers doctrine). The Third

District Court of Appeals has followed the Second District and held the same. See State v.

Hacker, 3d Dist. Logan No. 8-20-01, 2020-Ohio-5048, ¶ 22 (appellant failed to meet his

burden in demonstrating that the Reagan Tokes Law violates the doctrine of separation of

powers); State v. Kepling, 3d Dist. Hancock No. 5-20-23, 2020-Ohio-6888, ¶ 7 (Reagan

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Tokes Law is constitutional in that it does not violate the separation-of-powers doctrine).

{¶ 27} In reaching this decision, we note that Suder has requested this court to follow

the Hamilton County Court of Common Pleas' decision in State v. Oneal, Hamilton C.P. No.

B 1903562 (Nov. 20, 2019), the only known case that has found the Reagan Tokes Law

unconstitutional. The reasoning set forth in that decision, however, has been roundly

rejected by every court that has had the opportunity to address it. See, e.g.,Ferguson,

2020-Ohio-4153 at ¶ 26; Barnes, 2020-Ohio-4150 at ¶ 32-36; Leet, 2020-Ohio-4592, ¶ 11-

15; and Hacker, 2020-Ohio-5048 at ¶ 18-22. We join those courts and similarly reject the

reasoning set forth in Oneal finding the Reagan Tokes Law unconstitutional. Simply stated,

the Reagan Tokes Law does not violate an offender's due process rights or the separation-

of-powers doctrine. Therefore, finding no merit to any of the arguments advanced by Suder

herein, Suder's second assignment of error lacks merit and is overruled.

{¶ 28} Judgment affirmed.

M. POWELL, P.J., and HENDRICKSON, J., concur.

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