State v. Pippin , 94 N.E.3d 1186 ( 2017 )


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  • [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.
    3
    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.
    4
    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
    5
    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);
    6
    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.
    7
    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,
    8
    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
    9
    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.
    10
    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.
    11
    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,
    12
    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
    13
    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
    14
    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
    15
    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
    16
    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