State v. Lautanen , 2023 Ohio 1945 ( 2023 )

[Cite as State v. Lautanen, 2023-Ohio-1945.]
IN THE COURT OF APPEALS OF OHIO
ELEVENTH APPELLATE DISTRICT
ASHTABULA COUNTY
STATE OF OHIO, CASE NO. 2022-A-0028
Plaintiff-Appellee,
Criminal Appeal from the
-v- Court of Common Pleas
RUSSELL PAUL LAUTANEN,
Trial Court No. 2020 CR 00596
Defendant-Appellant.
OPINION
Decided: June 12, 2023
Judgment: Affirmed
Colleen M. O’Toole, Ashtabula County Prosecutor, and Christopher R. Fortunato,
Assistant Prosecutor, 25 West Jefferson Street, Jefferson, OH 44047 (For Plaintiff-
Appellee).
Edward M. Heindel, 2200 Terminal Tower, 50 Public Square, Cleveland, OH 44113 (For
Defendant-Appellant).
JOHN J. EKLUND, P.J.
{¶1} Appellant, Russell Lautanen, appeals from the Ashtabula County Court of
Common Pleas where he was convicted on 15 counts of Illegal Use of a Minor or Impaired
Person in Nudity-Oriented Material or Performance, second-degree felonies, in violation
of R.C. 2907.323(A)(1) and (B).
{¶2} Appellant has raised six assignments of error arguing that his convictions
were not supported by sufficient evidence and were against the manifest weight of the
evidence; that the trial court erred by admitting a phone report into evidence without the
person who created the report authenticating it; that the admission of that exhibit violated
appellant’s right to confrontation; that the trial court erred in imposing consecutive
sentences; and that the trial court erred by failing to merge his offenses.
{¶3} Having reviewed the record and the applicable caselaw, we find that
appellant’s convictions were supported by sufficient evidence and were not against the
manifest weight of the evidence; the trial court did not abuse its discretion by admitting a
cell phone report where a witness with knowledge was able to authenticate it; that
appellant’s right to confrontation was not violated where the creator of a cell phone
extraction report did not testify because the report was a machine-generated report; that
appellant failed to demonstrate that the record did not support the trial court’s imposition
of consecutive sentences; and that his offenses were not allied offenses of similar import
where each of appellant’s 15 counts he was convicted on represented a unique image of
a minor female and thus each image constituted a separate harm.
{¶4} Therefore, the judgment of the Ashtabula County Court of Common Pleas
is affirmed.
Substantive and Procedural History
{¶5} In December 2020, appellant was indicted on 15 counts of Illegal Use of a
Minor or Impaired Person in Nudity-Oriented Material or Performance, second-degree
felonies, in violation of R.C. 2907.323(A)(1).
{¶6} A jury trial was held which demonstrated the following facts:
{¶7} On March 22, 2019, appellant entered a Verizon store in Ashtabula to buy
a new phone and transfer the contents of his current phone onto the new device.
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{¶8} James Snyder, one of the employees at the Verizon store, assisted
appellant. Snyder testified that appellant entered the store to purchase a charger and
asked about transferring the data from his current phone to a new phone that he had
brought with him. Snyder said the new phone had no data on it when he turned it in on.
{¶9} Snyder assisted appellant in transferring over the data from appellant’s
current Motorola phone to a new Samsung phone. He testified that he used a
downloadable app to facilitate the transfer and logged appellant into his Google account
on the new Samsung phone. By logging into the Google cloud, appellant’s new phone
downloaded the images stored on the cloud. During this process, Snyder told appellant
that photos were displaying as they transferred. Appellant then grabbed the phone away
from Snyder but handed it back. The photos Snyder saw at that time were photos of tools.
{¶10} Snyder checked the two phones to ensure that all photos had been
transferred. He said that at that time he noticed photos of what appeared to be nude
underage girls between the ages of nine to 13 with their legs spread and clothes off
exposing their private parts. He said the photos were not merely photos in poor taste of
a child in a bathtub or another such example.
{¶11} Snyder testified that the photos appeared to have had been deleted from
the old phone but had likely either remained in cloud storage on appellant’s Google
account or had not been deleted from the trash bin. He said that the photos did in fact
transfer to the new phone.
{¶12} After seeking advice from a co-worker and district manager on how to
proceed, Snyder called the police.
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{¶13} Detective George Cleveland of the Conneaut Police Department testified
that he responded to the call at the Verizon store. Cleveland saw appellant’s phones in
the Verizon store and saw several “graphic images of nude prepubescent girls,
specifically their vaginas 1 and in at least one of those images the named pubescent girl
was masturbating.” Appellant was arrested and transported to the Conneaut Police
Department.
{¶14} Cleveland interviewed appellant and viewed the images on the new phone
with appellant. Cleveland said he reviewed the photos with appellant in an attempt to
identify the young girls in the photos. Appellant identified the girls in the images by their
first names and said they were 11 and 12 years old. He identified a third nude adult female
as his wife, Delia Samayo. Cleveland said that as he was interviewing appellant, the
phone continued to receive messages and explicit photos through the messaging app,
Whatsapp. During the interview, appellant said that Samayo had been sending images to
him for several weeks and he had deleted photos that came to him.
{¶15} Cleveland’s testimony described the 15 photos constituting the charges
against appellant which had been transferred from the old Motorola phone to the new
Samsung phone. Each of the images he described depicted a young girl with her vagina
exposed and posed in a sexual nature.
{¶16} Special Agent Charles Sullivan, an agent with the FBI, testified that he
works primarily in crimes against children cases. He worked with an FBI agent in Mexico
to assist Mexican authorities investigating the case from their end.
1. At times, trial testimony refers to the term “vagina” instead of the term “vulva,” even where “vulva” is the
proper term. Ultimately, this does not impact the analysis of this case, but is referenced here for clarity.
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{¶17} Sullivan said that the woman who sent appellant the pictures was Samayo,
and that there were two minor females in the recovered pictures. He said the “FBI
forensically examined the three cellular telephones.” Sullivan testified that State’s Exhibit
4 and Exhibit 25 were Cellebrite extraction reports for the Motorola and Samsung phones.
These reports were generated by FBI Cleveland forensic examiner, Christina Suther.
{¶18} A review of these exhibits reveals to us that each extraction report contains
a human-authored summary listing the date and time of extraction, the analyst who
performed the extraction, and a note specifying: “Case Agent Identified Child Abuse
Material.”
{¶19} The machine-generated portion of each report indicates the source of the
data and provides a unique “Unit Identifier” number. The reports specify the type of cable
used for the connection, a unique “Extraction ID” number, and other technical information
about the phones’ identifying information.
{¶20} Exhibit 4 indicates that the source extraction device was from a Samsung
phone. The extraction of Exhibit 4 was completed in approximately one minute. The report
contained the file information from 169 images. Each image was numbered and contained
the file name, the file location on the device, the size of the file, and the date the file was
created and modified. Exhibit 4 was a redacted version of the extraction report which did
not contain images.
{¶21} Exhibit 25 indicates the source extraction device was from a Motorola
phone. The extraction of Exhibit 25 was completed in approximately three minutes. The
report contains the file information from 61 images. Each image was numbered and
contained the file name, the file location on the device, the size of the file, and the date
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the file was created and modified. Exhibit 25 was a redacted version of the extraction
report which did not contain images.
{¶22} The State also introduced Exhibit 24 – two discs containing the unredacted
versions of Exhibits 4 and 25.
{¶23} Although Sullivan did not use the Cellebrite software himself to perform the
extractions he said he reviewed the extracted pictures from both reports and identified
the child abuse material in them. He concluded that images had been transferred from
the Motorola phone to the Samsung phone.
{¶24} Appellant’s trial counsel objected to testimony based on Exhibit 4 because
the witness testimony was based on the work of another person. The State established
that Sullivan had reviewed the contents of the extraction report and was familiar with the
exhibit and the trial court overruled the objection.
{¶25} The court admitted Exhibit 4 and the associated Exhibits derived from it,
over appellant’s objection and the State rested.
{¶26} Appellant made a Crim.R. 29 motion for acquittal on the basis that the
transfer of the images was done by a third person, and not by appellant. The State argued
that two transfers took place: the first when appellant moved the pictures from the
messaging app, Whatsapp, to the Google cloud storage; and the second when appellant
went to Verizon to have the contents of the old phone transferred to the new phone. The
court denied the motion and appellant proceeded with his case in chief.
{¶27} Appellant testified that he is an over-the-road truck driver. He testified that
he is married “on paper” to Samayo, that she lives in Mexico, but that the two separated
in 2018. Appellant stated that he began to receive pornographic material from his wife.
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He said he “[d]eleted as much as I could or as much as I understand I was deleting it, but
I guess delete don’t always mean delete come to find out, you know, so.” Appellant said
the young girls in the photos were his wife’s nieces and said the photos involved in the
charges against him were sent to him in 2018. Appellant said that any money he sent to
his wife was to help her pay for household expenses.
{¶28} Appellant testified that when Snyder mentioned pictures displaying during
the transfer, he grabbed his phone away from Snyder to show him the photos of tools the
two had been talking about. However, appellant denied asking Snyder to transfer any
photos, saying he only wanted his contacts transferred over.
{¶29} At the conclusion of appellant’s case in chief, he made a motion for directed
verdict which was denied.
{¶30} The jury found appellant guilty on all 15 counts.
{¶31} Prior to sentencing, the court held an argument on sentencing to address
consecutive sentencing and the merger of the counts. At the March 2022 sentencing
hearing, the court concluded that “[a]ll of the images are different and depict two different
minor victims posed in explicit pornographic images.”
{¶32} The court found that appellant “had downloaded on his phone and then
transferred to another phone, 15 separate pornographic nude images of two different
minor girls that he received from his wife in Mexico. Each image was a separate count of
illegal use of a minor or impaired person in nudity-oriented material or performance.
Evidently here the girls in the images were in the care of his wife at the time and were 9
and 10 years old. I viewed the pictures as did the jurors, and I will say they were highly
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offensive and disturbing. * * * it’s appropriate that the defendant, Mr. Lautanen, is
sentenced to consecutive sentences here.”
{¶33} Appellant had one prior conviction for domestic violence and a pending
criminal charge for theft and criminal trespassing. The court stated that it considered the
purposes and principles of felony sentencing and found that appellant did not have a
substantial prior criminal record and had shown remorse.
{¶34} Reviewing the R.C. 2929.12(B) seriousness factors, the court said that the
offenses were more serious because the offenses were sexual in nature, the victims were
minors, the victims did not provoke the incidents, and mental suffering “would be
exasperated by the victim’s age.” The court sentenced appellant to consecutive two-year
terms on each of the 15 counts with a presumed minimum sentence of 30 years and an
indefinite maximum sentence of 31 years. The court did not merge the counts.
{¶35} Appellant timely appealed raising six assignments of error.
Assignments of Error and Analysis
{¶36} Appellant’s first and second assignments of error state:
{¶37} “[1.] THE CONVICTIONS WERE NOT SUPPORTED BY SUFFICIENT
EVIDENCE.”
{¶38} “[2.] THE CONVICTIONS WERE AGAINST THE MANIFEST WEIGHT OF
THE EVIDENCE.”
{¶39} We address appellant’s first two assignments together.
{¶40} “‘Sufficiency’ is a term of art meaning that legal standard which is applied to
determine whether the case may go to the [factfinder] or whether the evidence is legally
sufficient to support the [factfinder’s] verdict as a matter of law.” State v. Thompkins, 78
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Ohio St.3d 380, 386, 678 N.E.2d 541 (1997), citing Black's Law Dictionary (6 Ed.1990)
1433. The appellate court’s standard of review for sufficiency of evidence is to determine,
after viewing the evidence in a light most favorable to the prosecution, whether a rational
trier of fact could find the essential elements of the crime proven beyond a reasonable
doubt. State v. Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492 (1991), paragraph two of the
syllabus.
{¶41} When evaluating the sufficiency of the evidence, we do not consider its
credibility or effect in inducing belief. Thompkins at 387. Rather, we decide whether, if
believed, the evidence can sustain the verdict as a matter of law. Id. This naturally entails
a review of the elements of the charged offense and a review of the State’s evidence.
State v. Richardson, 150 Ohio St.3d 554, 2016-Ohio-8448, 84 N.E.3d 993, ¶ 13.
{¶42} When evaluating the weight of the evidence, we review whether the
inclination of the greater amount of credible evidence, offered in a trial, to support one
side of the issue rather than the other indicated clearly that the party having the burden
of proof was entitled to a verdict in its favor, if, on weighing the evidence in their minds,
the greater amount of credible evidence sustained the issue which is to be established
before them. “Weight is not a question of mathematics but depends on its effect in
inducing belief.” Thompkins at 387. Whereas sufficiency relates to the evidence’s
adequacy, weight of the evidence relates the evidence’s persuasiveness. Id. The
reviewing court “weighs the evidence and all reasonable inferences, considers the
credibility of witnesses and determines whether in resolving conflicts in the evidence, the
[factfinder] clearly lost its way and created such a manifest miscarriage of justice that the
conviction must be reversed and a new trial ordered. The discretionary power to grant a
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new trial should be exercised only in the exceptional case in which the evidence weighs
heavily against the conviction.” State v. Martin, 20 Ohio App. 3d 172, 175, 485 N.E.2d
717 (1st Dist. 1983).
{¶43} The trier of fact is the sole judge of the weight of the evidence and the
credibility of the witnesses. State v. Landingham, 11th Dist. Lake No. 2020-L-103, 2021-
Ohio-4258, ¶ 22, quoting State v. Antill, 176 Ohio St. 61, 67, 197 N.E.2d 548 (1964). The
trier of fact may believe or disbelieve any witness in whole or in part, considering the
demeanor of the witness and the manner in which a witness testifies, the interest, if any,
of the outcome of the case and the connection with the prosecution or the defendant. Id.,quoting Antil at 67. This court, engaging in the limited weighing of the evidence introduced
at trial, is deferential to the weight and factual findings made by the factfinder. State v.
Brown, 11th Dist. Trumbull No. 2002-T-0077, 2003-Ohio-7183, ¶ 52, citing Thompkins at
390 and State v. DeHass, 10 Ohio St.2d 230, 227 N.E.2d 212 (1967), paragraph two of
the syllabus.
{¶44} A finding that a judgment is supported by the manifest weight of the
evidence necessarily means the judgment is supported by sufficient evidence. State v.
Arcaro, 11th Dist. Ashtabula No. 2012-A-0028, 2013-Ohio-1842, ¶ 32.
{¶45} R.C. 2907.323(A) provides that no person shall do any of the following:
(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, unless both of the following apply:
(a) The material or performance is, or is to be, sold,
disseminated, displayed, possessed, controlled, brought or
caused to be brought into this state, or presented for a bona
fide artistic, medical, scientific, educational, religious,
governmental, judicial, or other proper purpose, by or to a
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physician, psychologist, sociologist, scientist, teacher, person
pursuing bona fide studies or research, librarian, member of
the clergy, prosecutor, judge, or other person having a proper
interest in the material or performance;
(b) The minor's or impaired person's parents, guardian, or
custodian consents in writing to the photographing of the
minor or impaired person, to the use of the minor or impaired
person in the material or performance, or to the transfer of the
material and to the specific manner in which the material or
performance is to be used.
{¶46} Although not provided in the statute, the culpable mental state for R.C.
2907.323 is recklessness. See R.C. 2901.21(C)(1); State v. Mattocks, 11th Dist. No.
2020-T-0002, 2020-Ohio-3858, 156 N.E.3d 946, ¶ 34. R.C. 2901.22(C) states that “[a]
person acts recklessly when, with heedless indifference to the consequences, the person
disregards a substantial and unjustifiable risk that the person's conduct is likely to cause
a certain result or is likely to be of a certain nature. A person is reckless with respect to
circumstances when, with heedless indifference to the consequences, the person
disregards a substantial and unjustifiable risk that such circumstances are likely to exist.”
{¶47} R.C. 2907.323 does not define “transfer.” Applying the ordinary meaning of
the word, “transfer” encompasses a defendant sending pictures from one of his or her
own electronic devices to another of his or her own electronic devices. State v. Thomas,
8th Dist. No. 96146, 197 Ohio App.3d 176, 2011-Ohio-6073, 966 N.E.2d 939, ¶ 49, citing
State v. Anderson, 4th Dist. Washington No. 03CA3, 2004-Ohio-1033.
{¶48} Here, appellant’s convictions were supported by sufficient evidence and
were not against the manifest weight of the evidence. The State established that the
offenses took place in Ashtabula County and presented evidence that appellant entered
a Verizon store with two phones. The old phone, the Motorola, already had appellant’s
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personal information and materials on it. Snyder testified that the new phone, the
Samsung, had no data on it when he turned it on.
{¶49} Snyder testified that appellant asked him to transfer all of the contents of
his Motorola phone to his Samsung phone while appellant testified that he only asked for
the contacts to be transferred. Snyder testified that appellant snatched the phone away
when he realized pictures were transferring over.
{¶50} Appellant denied asking Snyder to transfer any photos, saying he only
wanted his contacts transferred over. However, appellant also testified that when Snyder
mentioned pictures displaying during the transfer, he grabbed his phone away from
Snyder to show him the photos of tools the two had been talking about. This contradiction
indicates that, at a minimum, appellant was aware that pictures were transferring from the
old phone to the new phone.
{¶51} Although appellant’s testimony differed in the specifics of the phone transfer
from the version Snyder provided, the jury was free to believe all or none of appellant’s
testimony as the sole judge of the credibility of the witnesses.
{¶52} Further, appellant testified that he believed he deleted the images from his
old phone. He also made similar statements to Cleveland during his interview. However,
Cleveland testified appellant continued to receive new pornographic pictures even during
his interview with appellant. Further, Cleveland said the extraction report did not indicate
anywhere that any of the “images were noted as having come from a trash or deleted
folder.” What is more, appellant’s claim that he thought the photos were deleted, even if
believed by the jury, does not mean that appellant was not reckless in his conduct by not
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ensuring they were actually deleted before having Snyder transfer the data from his
Motorola phone to the Samsung phone.
{¶53} Further, the State established that appellant knew that his Motorola phone
had received images of child pornography from his estranged wife. Cleveland said that
appellant admitted the children depicted in the pictures were appellant’s nieces through
marriage. He said that his review of the evidence revealed at least 17 images on the new
Samsung phone that were the same as on the Motorola phone and that ultimately, 15
charges were filed. Cleveland testified with detail about each of the 15 pictures that were
transferred and described the nature of the images as pornographic, including depictions
of masturbation and the minor’s vaginas.
{¶54} In resolving the conflicts in evidence, this is not the exceptional case in
which the evidence weighs heavily against conviction. We cannot conclude that the jury
lost its way and created a manifest miscarriage of justice.
{¶55} Accordingly, appellant’s first and second assignments of error are without
merit.
{¶56} Appellant’s third assignment of error states:
{¶57} “[3.] THE TRIAL COURT ERRED WHEN IT ADMITTED A CELLEBRITE
PHONE REPORT WITHOUT THE AUTHOR OF THE REPORT BEING PRESENT TO
AUTHENTICATE THE REPORT.”
{¶58} Appellant argues that because Sullivan did not create Exhibit 4, the
Samsung cellphone extraction report, his testimony alone could not authenticate the
exhibit because he could not testify whether it was an accurate report.
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{¶59} The determination to admit or exclude evidence lies within the discretion of
the trial court and will not be reversed absent an abuse of discretion. State v. Miller, 11th
Dist. Trumbull No. 2014-T-0061, 2015-Ohio-956, ¶ 14. “‘The term “abuse of discretion” is
one of art, connoting judgment exercised by a court which neither comports with reason,
nor the record.’ State v. Underwood, 11th Dist. Lake No. 2008-L-113, 2009-Ohio-208, ¶
30, citing State v. Ferranto, 112 Ohio St. 667, 676-678, [148 N.E. 362] (1925).” State v.
Raia, 11th Dist. Portage No. 2013-P-0020, 2014-Ohio-2707, ¶ 9. Stated differently, an
abuse of discretion is “the trial court’s ‘failure to exercise sound, reasonable, and legal
decision-making.’” Id., quoting State v. Beechler, 2d Dist. Clark No. 09-CA-54, 2010-Ohio-
1900, ¶ 62, quoting Black’s Law Dictionary 11 (8th Ed.Rev.2004). “When an appellate
court is reviewing a pure issue of law, ‘the mere fact that the reviewing court would decide
the issue differently is enough to find error[.] * * * By contrast, where the issue on review
has been confined to the discretion of the trial court, the mere fact that the reviewing court
would have reached a different result is not enough, without more, to find error.’” Id.,quoting Beechler at ¶ 67. Here, we address the authentication of evidence under an
abuse of discretion standard. See State v. Wade, 11th Dist. Lake No. 2019-L-065, 2020-
Ohio-2894, ¶ 22.
{¶60} Evid.R. 901(A) states that “[t]he requirement of authentication or
identification as a condition precedent to admissibility is satisfied by evidence sufficient
to support a finding that the matter in question is what its proponent claims.” “‘This low
threshold standard does not require conclusive proof of authenticity, but only sufficient
foundational evidence for the trier of fact to conclude that the document is what its
proponent claims it to be.’” State v. Miller, 11th Dist. Trumbull No. 2014-T-0061, 2015-
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Ohio-956, ¶ 21, quoting State v. Easter, 75 Ohio App.3d 22, 25, 598 N.E.2d 845 (4th
Dist.1991); Giannelli, Ohio Evidence Manual (1990) 6, Section 901.01. Authenticity may
be demonstrated through direct or circumstantial evidence. State v. Jaskiewicz, 11th Dist.
Trumbull No. 2012-T-0051, 2013-Ohio4552, ¶ 12.
{¶61} Evid.R. 901(B)(1) provides, by way of illustration, that testimony from a
witness with knowledge that a matter is what it is claimed to be is sufficient to authenticate
evidence. The proponent of the evidence need only demonstrate a “reasonable likelihood”
that the evidence is authentic. State v. Jaskiewicz, 11th Dist. Trumbull No. 2012-T-0051,
2013-Ohio-4552, ¶ 14, citing State v. Bell, 12th Dist. Clermont No. CA2008-05-044, 2009-
Ohio-2335, ¶ 30.
{¶62} Here, Sullivan testified that he analyzed the extraction reports for both
phones and said that he was familiar with the materials in question. As to State’s Exhibit
4, he stated “I’ve reviewed the images and I'm the agent that marks them as being of
evidentiary value * * *.” He further stated that the “images that are -- that I found on these
two cell phones displayed the lascivious exhibition of child's genitalia.” Sullivan properly
authenticated the evidence as a person with knowledge that the exhibit was what it
claimed to be. The trial court did not abuse its discretion by admitting State’s Exhibit 4 or
the exhibits derived from State’s Exhibit 4.
{¶63} Accordingly, appellant’s third assignment of error is without merit.
{¶64} Appellant’s fourth assignment of error states:
{¶65} “[4.] THE ADMISSION OF STATE’S EXHIBIT 4 VIOLATED LAUTENEN’S
RIGHT TO CONFRONT AND CROSS-EXAMINE THE WINTESSES AGAINST HIM.”
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{¶66} Appellant sought a mistrial and objected to testimony based on State’s
Exhibit 4 because Sullivan was not the one who did the forensic analysis and did not
prepare the extraction reports.
{¶67} The Sixth Amendment to the United States Constitution provides in relevant
part “[i]n all criminal prosecutions, the accused shall enjoy the right * * * to be confronted
with the witnesses against him.” The right to confrontation applies to all testimonial
statements. Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177(2004). “[T]he admission of a testimonial hearsay statement made by a declarant who
does not testify at trial violates the Sixth Amendment unless (1) the declarant is
unavailable and (2) the defendant had a prior opportunity to cross-examine the declarant.”
State v. Neyland, 139 Ohio St.3d 353, 2014-Ohio-1914, 12 N.E.3d 1112, ¶ 173, citing
Crawford at 68. “The proper inquiry for determining the testimonial nature of a statement
is ‘whether a reasonable person in the declarant’s position would anticipate his statement
being used against the accused in investigating and prosecuting the crime.’” State v.
Metter, 11th Dist. Lake No. 2012-L-029, 2013-Ohio-2039, ¶ 35, quoting United States v.
Cromer, 389 F.3d 662, 675 (6th Cir.2004).
{¶68} Appellant argues that he had a right to confront Suther because she was
the person who actually performed the Cellebrite extraction and generated the report.
{¶69} The State argues that it provided notice to appellant through discovery that
Suther was a potential witness, and that appellant could have called Suther to testify. The
State therefore argues that appellant was not deprived of his right to confront Suther.
{¶70} The State’s argument has already been roundly rejected by the United
States Supreme Court in Melendez-Diaz v. Massachusetts, 557 U.S. 305, 174 L.Ed.2d
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314, 129 S.Ct. 2527 (2009). In that case, the Court said the defendant’s ability to
subpoena a witness,
whether pursuant to state law or the Compulsory Process Clause—
is no substitute for the right of confrontation. * * * Converting the
prosecution’s duty under the Confrontation Clause into the
defendant’s privilege under state law or the Compulsory Process
Clause shifts the consequences of adverse-witness no-shows from
the State to the accused. More fundamentally, the Confrontation
Clause imposes the burden on the prosecution to present its
witnesses, not on the defendant to bring those adverse witnesses
into court. Its value to the defendant is not replaced by a system in
which the prosecution presents its evidence via ex parte affidavits
and waits for the defendants to subpoena the affiants if he chooses.
Id. at 324-32; see also Moore v. Ohio, 559 U.S. 967, 176 L.Ed.2d 176, 130 S.Ct. 1685(Where, in light of Melendez-Diaz, the United States Supreme Court vacated and
remanded State v. Moore, 8th Dist. Cuyahoga No. 85828, 2008-Ohio-2359, which held
that a qualified expert chemical analyst could testify in place of the chemist who actually
performed the testing.”).
{¶71} The issue to be decided is not whether appellant could have called Suther
as a witness, but whether the Cellebrite extraction report was testimonial in nature and
therefore imposed on the State a duty to call Suther as a witness.
{¶72} In Bullcoming v. New Mexico, 564 U.S. 647, 180 L.Ed.2d 610, 131 S.Ct.
2705 (2011), the United States Supreme Court held that admitting a report of the
defendant’s blood-alcohol level without providing testimony from the analyst who
performed the report violated the Confrontation Clause. Id. at 664-665. The court said
that the report was testimonial because it was a statement used to prove a fact at trial. Id.
The Court further said that it was improper to allow a substitute analyst to testify when
that analyst did not perform or observe the test. Id. The Court rejected the argument that
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the analysist’s role was that of a scrivener merely transcribing the machine-generated
result. Id. at 659-660. The Court observed that a substitute analyst could not expose
potential inaccuracies made by the original analyst. Id. at 660. This was because the
analyst's certification report,
contained more than a machine-generated number: It represented
that [the analyst] received Bullcoming’s blood sample intact with the
seal unbroken that he checked to make sure the forensic report
number and the sample number corresponded that he performed a
particular test on Bullcoming’s sample, adhering to a precise
protocol; and that he left the report’s remarks section blank,
indicating that no circumstance or condition affected the sample’s
integrity or the analysis’ validity. These representations, relating to
past events and human actions are not revealed in raw, machine-
produced data, are meet for cross-examination.
Id. at syllabus.
{¶73} Unfortunately, Ohio case law on the issue of cell phone reports is scant.
The Ohio Supreme Court has concluded that “in general, cell-phone records produced by
a cell-phone company * * * if properly authenticated, are business records and are not
testimonial.” State v. Hood, 135 Ohio St.3d 137, 2012-Ohio-6208, 984 N.E.2d 1057, ¶ 4.
In general, documents “prepared to demonstrate that routine maintenance, such as
calibration and instrument checks, have been performed on breathalyzers are non-
testimonial.” State v. Wolfle, 3rd Dist. Paulding No. 11-11-01, 2011-Ohio-5081, ¶ 14;
Melendez-Diaz, supra, at 311, fn. 1. The critical distinction in Wolfle was whether the
documents were “prepared with an eye to prosecute a specific defendant” or prepared “to
demonstrate compliance with administrative rules.” Id.{¶74} Here, the Cellebrite extraction report was certainly prepared with an eye to
prosecute appellant specifically. However, the Fifth Circuit Court of Appeals has
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addressed whether a machine-generated report may be non-testimonial in a case of
nearly identical circumstances.
{¶75} In United States v. Hill, 35 F.4th 366, (5th Cir. 2022), an agent testified
concerning reports of information extracted from the defendant’s cell phone. The agent
did not perform the extraction and testified as to versions of the report that he had edited
down to portions he deemed relevant. Id. at 388. The defendant objected, arguing that
because the agent did not personally perform the extraction or observe the extraction, his
testimony violated the Confrontation Clause. Id.
{¶76} The court applied a de novo standard of review and concluded that, based
on the holding in Melendez-Diaz, “raw, machine-produced data” containing no
independent analysis or opinion, such as cell phone GPS tracking reports, were not
testimonial statements subject to the Confrontation Clause. Id. at 389-390, citing United
States v. Waguespack, 935 F.3d 322, 333-334 (5th Cir. 2019) (Coming to the same
conclusion under a plain error standard of review.). The Fifth Circuit said that “[k]ey
differences exist between test reports generated by a person’s analysis and test reports
which are the result of machine analysis.” Id. The court said that, unlike Bullcoming, the
cell phone extraction report at issue was non-testimonial because it contained only raw,
machine-produced data and the report contained no “‘representations relating to past
events and human actions[,]’ e.g., the validity of the analysis or the integrity of the
sample.” (Bracket in original) Id., quoting Bullcoming at 660; accord People v. Abad, 2021
COA 6, 490 P.3d 1094, ¶ 54-56 (Cell phone extraction report was not hearsay and did
not implicate the Confrontation Clause where generating the report required no human
input beyond plugging the phone into a machine.); see also United States v. Arce, 49
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F.4th 382, 391−92 (4th Cir. 2022) (Noting that it can be difficult to apply Confrontation
Clause standard to technical reports, “[b]ut in general, when ‘machines generate[ ] data
... through a common scientific and technological process,’ the operators of those
machines do not make a ‘statement’ under the Confrontation Clause when reporting the
data.” Id., quoting United States v. Washington, 498 F.3d 225, 229 (4th Cir. 2007)); United
States v. Lamons, 532 F.3d 1251, 1262–64 (11th Cir. 2008) (“The exemption of machine-
generated statements from the purview of the Confrontation Clause also makes sense in
light of the purposes of confrontation.”).
{¶77} What we discern from the above cited authorities is that machine-generated
reports or data – such as a cell phone extraction report involved in this case – may be
non-testimonial when: (1) the report or data is not generated with an eye to prosecuting
a particular defendant; (2) the report or data is not used to prove a fact at trial; (3) where
the report or data is generated with an eye to prosecute a particular defendant and prove
a fact at trial, it may nevertheless be non-testimonial because the report itself does not
rely on the validity of an analysis or adherence to precise protocols which would not be
revealed in the machine-generated report itself.
{¶78} Here, the Cellebrite extraction report was certainly prepared with an eye to
prosecute appellant specifically and the report was used to prove facts at trial. However,
we are persuaded that the Cellebrite extraction report is non-testimonial by the reasoning
of the Fifth Circuit in Hill, supra.
{¶79} The cell phone extraction report that Suther prepared was a machine-
generated report and was non-testimonial because the report itself would reveal whether
Suther properly performed the extraction or if she extracted information from an incorrect
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device. Thus, the extraction report here does not contain representations of human
actions which would speak to the validity of the analysis or the integrity of the sample.
The machine-generated results indicate unique features corresponding to each phone.
The machine-generated report itself notes – among other relevant data – what kind of
cable was used, provides a “Unit Identifier” number, and a unique “Extraction ID” number.
At a side bar relating to the extraction report, the State said that Suther “just sticks it on a
machine and it spits it out.” The Court overruled appellant’s objection saying, “So that was
my understanding. [Sullivan’s] not testifying to that process.”
{¶80} Sullivan testified that although he did not perform the extraction report, he
was the person who analyzed the results of that report and concluded that child
pornography had been transferred from the Motorola phone to the new Samsung phone.
Sullivan’s testimony relied on the raw data produced by the extraction report, and he
interpreted that data. His analysis was plainly testimonial in nature but relied on the non-
testimonial machine-generated cell phone extraction report. We find no violation of the
Confrontation Clause.
{¶81} Accordingly, appellant’s fourth assignment of error is without merit.
{¶82} Appellant’s fifth assignment of error states:
{¶83} “[5.] THE FINDINGS THAT WERE MADE TO IMPOSE CONSECUTIVE
SENTENCES WERE NOT SUPPORTED BY THE RECORD.”
{¶84} There are three ways an appellant can challenge consecutive sentences on
appeal. State v. Lewis, 11th Dist. Lake No. 2001-L-060, 2002-Ohio-3373, ¶ 6. First, the
appellant may argue that the sentencing court failed to state the findings for consecutive
sentences that R.C. 2929.14(C)(4) requires. State v. Torres, 11th Dist. Lake No. 201-L-
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122, 2003-Ohio-1878, ¶ 18; R.C. 2953.08(G)(1). Second, the appellant may argue that
the record clearly and convincingly does not support the findings the sentencing court
made to justify consecutive sentences. Lewis at ¶ 7; R.C. 2953.08(G)(2)(a). Third, the
appellant may argue that his sentence is clearly and convincingly otherwise contrary to
law. R.C. 2953.08(G)(2)(b).
{¶85} R.C. 2929.14(C)(4) provides:
If multiple prison terms are imposed on an offender for convictions of
multiple offenses, the court may require the offender to serve the
prison terms consecutively if the court finds that the consecutive
service is necessary to protect the public from future crime or to
punish the offender and that consecutive sentences are not
disproportionate to the seriousness of the offender's conduct and to
the danger the offender poses to the public, and if the court also finds
any of the following:
(a) The offender committed one or more of the multiple
offenses while the offender was awaiting trial or sentencing, was
under a sanction imposed pursuant to section 2929.16, 2929.17, or
2929.18 of the Revised Code, or was under 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.
{¶86} In making its findings for consecutive sentences, the sentencing court is
required to engage in the analysis for consecutive sentencing and specify the statutory
criteria warranting its decision. State v. Bonnell, 140 Ohio St. 3d 209, 2014-Ohio-3177,
16 N.E.3d 659, at ¶ 26. While the sentencing court is not required to state exact reasons
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supporting its findings, the record must contain a clear basis upon which a reviewing court
can determine that the sentencing court’s findings for imposing consecutive sentences
are supported by the record. Id. at ¶ 27-28.
{¶87} Appellant acknowledges that the trial court made the appropriate findings
to impose consecutive sentences. However, appellant argues that the findings were
contrary to the record because he merely received the pictures from his estranged wife
and did not transfer the pictures to a third party. He contends that there is no evidence in
the record to suggest that the harm caused by the events was so great or unusual that
no single term would suffice.
{¶88} At the sentencing hearing, the trial court articulated the basis for imposing
consecutive sentences by noting the disturbing and sexual nature of the offenses, that
the victims did not provoke the offenses, and the court highlighted the young age of the
two victims. The court also said that each image represented a separate harm. The court
articulated a clear basis upon which this Court can determine whether its findings to
impose consecutive sentences were supported by the record. Id. On that basis, we
conclude that the record supports the trial court’s imposition of consecutive sentences
under R.C. 2929.14(C)(4). Appellant has not shown how this record does not clearly and
convincingly support the findings of the sentencing court to impose consecutive
sentences.
{¶89} Accordingly, appellant’s fifth assignment of error is without merit.
{¶90} Appellant’s sixth assignment of error states:
{¶91} “[6.] THE TRIAL COURT ERRED WHEN IT FAILED TO MERGE ALL OF
THE CHARGES AS ALLIED OFFENSES INTO ONE COUNT.”
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{¶92} Appellant argues that his charges should have been merged for purposes
of sentencing because he committed one act to effectuate the transfer of the pictures.
Therefore, he believes that he should be sentenced for only one count because the
conduct was not of dissimilar import, the offenses were not committed separately, and
because the conduct was not committed with a separate animus.
{¶93} At sentencing, the trial court said appellant “had downloaded on his phone
and then transferred to another phone, 15 separate pornographic nude images of two
different minor girls that he received from his wife in Mexico. Each image was a separate
count of illegal use of a minor or impair person in nudity-oriented material or performance.”
{¶94} While the defendant bears the burden of establishing entitlement to having
offenses merged under R.C. 2941.25, an appellate court conducts a de novo review of
the trial court’s decision regarding merger of offenses. State v. Frost, 11th Dist. No. 2020-
P-0031, 2020-Ohio-6920, 165 N.E.3d 351, citing State v. Washington, 137 Ohio St.3d
427, 2013-Ohio-4982, 999 N.E.2d 661, ¶ 18.
{¶95} R.C. 2941.25, Ohio’s merger statute, provides:
(A) Where the same conduct by defendant can be construed to
constitute two or more allied offenses of similar import, the indictment
or information may contain counts for all such offenses, but the
defendant may be convicted of only one. (B) Where the defendant's
conduct constitutes two or more offenses of dissimilar import, or
where his conduct results in two or more offenses of the same or
similar kind committed separately or with a separate animus as to
each, the indictment or information may contain counts for all such
offenses, and the defendant may be convicted of all of them.
{¶96} “Under R.C. 2941.25(B), a defendant whose conduct supports multiple
offenses may be convicted of all the offenses if any one of the following is true: (1) the
conduct constitutes offenses of dissimilar import, (2) the conduct shows that the offenses
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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. “An affirmative answer to any of the above will permit
separate convictions. The conduct, the animus, and the import must all be considered.”
Id. at ¶ 31.
{¶97} Where a defendant’s conduct harms more than one person, the harm to
each person is separate and the defendant can be convicted on multiple counts. Id. at ¶
26. “[A] defendant's conduct that constitutes two or more offenses against a single victim
can support multiple convictions if the harm that results from each offense is separate
and identifiable harm from the harm of the other offense.” Id.
{¶98} The Ohio Supreme Court recognized that analyzing whether offenses are
of dissimilar import “may be sometimes difficult to perform and may result in varying
results for the same set of offenses in different cases. But different results are permissible,
given that the statute instructs courts to examine a defendant’s conduct – an inherently
subjective determination.” Id. at ¶ 32.
{¶99} The State argues in its brief that “the transfer itself may have been one
transaction, but what was transacted was at least 61 images. * * * [T]he amount of images
here used to manipulate these victims was more than one offense.” In arguing against
merger before the trial court, the State cited State v. Bosley, 7th Dist. Mahoning No. 16
MA 0100, 2017-Ohio-7643.
{¶100} In Bosley, the Seventh District held that multiple offenses of Pandering
Sexually Oriented Matter Involving a Minor do not merge. Id. at ¶ 16. The court noted that
many other appellate districts in Ohio have come to similar conclusions. Id., citing State
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v. Duhamel, 8th Dist. Cuyahoga No. 102346, 2015-Ohio-3145; State v. Eal, 10th Dist.
Franklin No. 11AP-460, 2012-Ohio-1373; State v. Mannarino, 8th Dist. Cuyahoga No.
98727, 2013-Ohio-1795.
{¶101} The Eighth District in Duhamel held that the act of downloading “each file of
child pornography” was done with a separate animus and “each downloaded file was a
crime against a separate victim or victims.” Id. at ¶ 62. Eal similarly held that each
individual image represents a “new and distinct crime” and that the mere fact that the
crimes occurred in quick succession did not “mean that they were not committed
separately or with separate animus.” Eal, at ¶ 93, quoting State v. Blanchard, 8th Dist.
Cuyahoga No. 90935, 2009-Ohio-1357, ¶ 12. Mannarino held that the two counts of
Pandering Sexually Oriented Matter Involving a Minor under R.C. 2907.322(A)(1) and
(A)(2) were not allied offenses of similar import where each charge was supported by a
separate image or video. Id. at ¶ 53.
{¶102} In addition, the Fifth District joined the reasoning of the above cited cases
in State v. Starcher, 5th Dist. Stark No. 2015CA00058, 2015-Ohio-5250. The court,
addressing whether multiple counts of Pandering Sexually Oriented Matter Involving a
Minor were allied offenses said that a separate animus exists for each time a separate
image or file is downloaded or saved because the “selection of each individual video or
image is a separate decision.” Id. at ¶ 35. (Emphasis added).
{¶103} The above case law emphasizes two elements. First, that the defendant
engaged in the separate acts of selecting – whether by downloading, uploading, saving,
soliciting, creating, or receiving multiple images. None deals specifically with a single
transfer of multiple images from one device to another. Second, that each image
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represents a separate instance of harm to a victim. With each image, the defendant is
causing harm to separate victims or creating a separate and identifiable harm to the same
victim.
{¶104} Here, appellant committed a single act – that of transferring the contents of
the Motorola phone to the Samsung phone. In this way, this case is distinct from the
above cited authorities because appellant did not select any particular files to transfer –
appellant transferred the entire contents of the Motorola phone to the Samsung phone.
He was not selecting individual files in a way that could support a determination that he
made 15 separate decisions to transfer the 15 files. See Starcher, 2015-Ohio-5250, ¶ 35.
Further, appellant did not transfer the images to a third party or distribute them in any
way.
{¶105} However, appellant’s conduct does constitute two or more offenses against
a single victim or multiple victims. As the evidence demonstrated, there were multiple
pictures of the two identified minor victims. Each count was supported by a separate
image and each picture represented a separate and identifiable harm. See Ruff at ¶ 26.
On this basis, we conclude that the 15 counts appellant was sentenced on were not allied
offenses of similar import.
{¶106} Accordingly, appellant’s sixth assignment of error is without merit.
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{¶107} For the foregoing reasons, the judgment of the Ashtabula County Court of
Common Pleas is affirmed.
MARY JANE TRAPP, J.,
MATT LYNCH, J.,
concur.
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