State v. Balbi , 2015 Ohio 4075 ( 2015 )

[Cite as State v. Balbi, 2015-Ohio-4075.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 102321
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
ORLANDO JOSE MARTINEZ BALBI
DEFENDANT-APPELLANT
JUDGMENT:
AFFIRMED
Criminal Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CR-14-584996-A
BEFORE: Stewart, J., E.A. Gallagher, P.J., McCormack, J.
RELEASED AND JOURNALIZED: October 1, 2015
ATTORNEY FOR APPELLANT
Christopher M. Kelley
75 Public Square, Suite 700
Cleveland, OH 44113
ATTORNEYS FOR APPELLEE
Timothy J. McGinty
Cuyahoga County Prosecutor
Brett Kyker
Assistant County Prosecutor
Justice Center, 8th Floor
1200 Ontario Street
Cleveland, OH 44113
MELODY J. STEWART, J.:
{¶1} Defendant-appellant Orlando Jose Martinez Balbi pled guilty to 17 counts of
pandering sexually oriented material involving a minor, in violation of R.C.
2907.322(A)(2) (Counts 1-17); 22 counts of pandering sexually oriented material
involving a minor, in violation of R.C. 2907.322(A)(1) (Counts 18-39); and one count of
possession of criminal tools, in violation of R.C. 2923.24(A) (Count 100). The court
ordered Balbi to serve concurrent, five-year sentences on Counts 1-17; concurrent
five-year sentences on Counts 18-39, and a 12-month sentence on Count 100, served
concurrent with Counts 1-39. The court ordered the five-year sentences on Counts 1-17
to be served consecutive to the five-year sentences on Counts 19-39, for a total prison
term of ten years. The sole issue on appeal is whether the record supports the findings
that the court made before ordering consecutive service.
{¶2} R.C. 2929.14(C)(4) permits the court to order consecutive service of
sentences if:
[T]he 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
postrelease 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 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.
{¶3} Our ability to review sentencing decisions by a trial court is circumscribed by
R.C. 2953.08(G)(2). That section makes it clear that our standard of review is not
whether the sentencing court abused its discretion. Rather, a criminal sentence can be
reversed only if it is “contrary to law” or if the appellate court clearly and convincingly
finds that “the record does not support the sentencing court’s findings” under R.C.
2929.14(C)(4).
{¶4} A sentence is “contrary to law” if the sentencing court failed to make the
findings required to order consecutive service of sentences under R.C. 2929.14(C)(4).
See R.C. 2953.08(G)(2)(a); State v. Bonnell, 140 Ohio St.3d 209, 2014-Ohio-3177, 16
N.E.3d 659, ¶ 28. Balbi does not argue on appeal that the sentencing judge failed to
make the required findings, nor does he argue that the sentencing judge failed to
incorporate those findings into the sentencing entry as required by Crim.R. 32(A) and
Bonnell.
{¶5} Balbi’s appeal asserts that the record does not support the sentencing judge’s
findings for consecutive service. We have noted that our review of claims that the record
does not support the sentencing judge’s findings under R.C. 2929.14(C)(4) is “extremely
deferential.” State v. Venes, 2013-Ohio-1891, 992 N.E.2d 453, ¶ 21 (8th Dist.). This is
because R.C. 2953.08(G)(2) states that “it is the court of appeals that must clearly and
convincingly find that the record does not support the court’s findings. In other words,
the restriction is on the appellate court, not the trial judge.” Id. “Clearly and
convincingly” has the same meaning as it does in other contexts — it is that quantum of
evidence that instills a firm belief or conviction as to the allegations sought to be
established. Cross v. Ledford, 161 Ohio St. 469, 477, 120 N.E.2d 118 (1954).
{¶6} Balbi first argues that the record does not support the court’s finding that
consecutive sentences were necessary to protect the public from future crime or to punish
him. He maintains that he had no criminal record before his arrest in this case, he had
been a law-abiding resident of the United States (Balbi is not a United States citizen), and
that his crimes were committed under circumstances that were unlikely to recur. He
claimed that he “accidently” viewed images of child pornography and then continued to
do so because those pictures triggered repressed memories of his own molestation as a
child. He denied having a sexual interest in children and said that he gained no sexual
gratification from looking at the photographs.
{¶7} The state countered Balbi’s assertion that he “accidentally” came across
images of child pornography by noting that Balbi had used file-sharing software not only
to view images, but to share them with others. Investigators were able to download
images of child pornography from Balbi’s computer and later obtained a search warrant,
the execution of which uncovered more images on Balbi’s computer. When confronted
by the police, Balbi told them he had approximately 15 images of child pornography, but
in fact he had 83 images and 274 videos of child pornography on three different storage
devices. Forensic software used by the police enabled them to determine that Balbi was
searching for child pornography using the terms “10Y” (ten years old); “little girls;”
“PTHC black” (preteen hardcore black); and “PTHC Tai [sic].” Tr. 47. And to counter
Balbi’s assertion that he had no sexual interest in children, the state noted that one file
stored on Balbi’s computer was titled: “Two Little Boy, Baby Boy Sex-One Boy, Toddler,
One Man” that showed “a prepubescent boy being masturbated by an adult man.” Tr. 49.
{¶8} Given these facts, we cannot clearly and convincingly find that the record
does not support the sentencing judge’s conclusion that consecutive sentences were
necessary to protect the public from future crime or to punish Balbi. The sheer quantity
of child pornography found in Balbi’s possession undermined his claim that he
“stumbled” upon it and did not use it for sexual gratification but to explore his own
victimization.
{¶9} In addition, there was no evidence to support Balbi’s claim that he had been
molested as a child — in fact, the state represented that Balbi told the police at the time of
his arrest that he had a “sickness.” The record tends to show that the child pornography
viewed and shared by Balbi was for sexual gratification and not for therapeutic purposes.
And Balbi’s argument that he was entitled to lenity because he had only viewed child
pornography for a few months might have carried more weight had the quantity of what
he viewed in that time period not been so voluminous.
{¶10} Balbi next argues that consecutive sentences were unnecessary to protect the
public because he will be deported after serving his prison sentence. Assuming the
certainty of Balbi’s deportation, it is not a valid reason to find that it supersedes the
state’s interest in punishing him and that he will not resume his activity elsewhere. Apart
from the self-serving nature of the argument, any deterrence factor in his punishment
would be lost. See State v. Vlahopoulos, 154 Ohio App.3d 450, 2003-Ohio-5070, 797
N.E.2d 580, ¶ 5 (8th Dist.).
{¶11} We likewise cannot clearly and convincingly find that the record does not
support the sentencing judge’s conclusion that consecutive sentences are not
disproportionate to Balbi’s conduct and the danger that he poses to the public. Child
pornography is not a victimless crime and Balbi’s assertions that he did nothing more than
view and download this material in private ignore the severity of the harm caused to the
children depicted in that material. State v. Carlisle, 8th Dist. Cuyahoga No. 93266,
2010-Ohio-3407, ¶ 37 (“It requires no citation to authority for the proposition that acts of
sexual abuse committed against children are considered among the most heinous of
crimes.”). Although Balbi’s lack of a prior criminal record was a factor for the
sentencing judge to consider, it is not by itself dispositive of whether he may reoffend
and, in the process, remain a danger to the public.
{¶12} Judgment affirmed.
It is ordered that appellee recover of said appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the common
pleas court to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of
the Rules of Appellate Procedure.
______________________________________________
MELODY J. STEWART, JUDGE
EILEEN A. GALLAGHER, P.J., and
TIM McCORMACK, J., CONCUR