State v. Shiveley , 2022 Ohio 4036 ( 2022 )

[Cite as State v. Shiveley, 2022-Ohio-4036.]
IN THE COURT OF APPEALS
TWELFTH APPELLATE DISTRICT OF OHIO
CLERMONT COUNTY
STATE OF OHIO, : CASE NO. CA2022-04-017
Appellee, : OPINION
11/14/2022
:
- vs -
:
BRANDON M. SHIVELEY, :
Appellant. :
CRIMINAL APPEAL FROM CLERMONT COUNTY COURT OF COMMON PLEAS
Case No. 2021 CR 01054
Mark J. Tekulve, Clermont County Prosecuting Attorney, and Nicholas A. Horton, Assistant
Prosecuting Attorney, for appellee.
W. Stephens Haynes, Clermont County Public Defender, and Robert F. Benintendi,
Assistant Public Defender, for appellant.
M. POWELL, P.J.
{¶ 1} Appellant, Brandon M. Shiveley, appeals the prison sentence imposed by the
Clermont County Court of Common Pleas after he was convicted of pandering sexually
oriented matter involving a minor and illegal use of minor in nudity-oriented material or
performance. For the reasons discussed below, we affirm his sentence.
Clermont CA2022-04-017
{¶ 2} In November of 2021, appellant was indicted on 21 counts of pandering and
26 counts of illegal use, all felonies of the second degree. The videos and photographs in
appellant's possession depicted nude, prepubescent females engaged in various sexual
acts, and some of the photos and videos involved identified victims. Appellant downloaded,
copied, and traded these photographs and videos through various social media platforms
and online storage spaces, including Snapchat, Dropbox, and Omegle. Appellant admitted
that this behavior began four or five years ago. On several occasions, his online accounts
were shut down due to child pornography content, and he would open new accounts to
continue trading images and videos. A search warrant revealed that appellant opened
seven different Snapchat accounts and one Dropbox account, all of which contained
pornographic videos and images of prepubescent females.
{¶ 3} In February of 2022, as part of a plea bargain, appellant plead guilty to five
counts of pandering and one count of illegal use. The state dismissed the remaining
charges. The court sentenced appellant to consecutive three-year sentences for three of
the pandering counts, a consecutive six-year sentence for one of the pandering counts, and
concurrent three-year sentences for one count of pandering and the one count of illegal
use, resulting in an aggregate minimum prison sentence of 15 years.
{¶ 4} Appellant now appeals his sentence, raising the following as his only
assignment of error:
{¶ 5} THE TRIAL COURT ERRED IN ORDERING APPELLANT'S TERMS OF
IMPRISONMENT TO RUN CONSECUTIVELY.
{¶ 6} In his assignment of error, appellant challenges the trial court's decision to
impose consecutive sentences for four of his convictions. Appellant argues that the record
does not support a finding that (1) consecutive sentences are not disproportionate to the
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danger appellant poses to the public, and (2) that the "actual" harm caused by appellant
was "so great or unusual" that no single prison term was sufficient to address that harm.
{¶ 7} We review a felony sentence according to R.C. 2953.08(G)(2). State v. King,
12th Dist. Butler No. CA2018-05-101, 2019-Ohio-1492, ¶ 8. The statute provides that an
appellate court may modify or vacate a felony sentence only if, by clear and convincing
evidence, "the record does not support the trial court's findings under relevant statutes or
that the sentence is otherwise contrary to law." State v. Harp, 12th Dist. Clermont No.
CA2015-12-096, 2016-Ohio-4921, ¶ 7. Thus, there are two ways that a defendant can
challenge consecutive sentences on appeal. First, the defendant can argue that
consecutive sentences are contrary to law because the court failed to make the necessary
findings required by R.C. 2929.14(C)(4), or the defendant can argue that the record does
not support the findings made under R.C. 2929.14(C)(4). State v. Hawley, 8th Dist.
Cuyahoga No. 108254, 2020-Ohio-1270, ¶ 10. Appellant concedes that his sentence is not
contrary to law, and argues only that the consecutive sentence findings are not supported
by the record.
{¶ 8} As the Ohio Supreme Court has explained, "because R.C. 2953.08(G)(2)(a)
specifically mentions a sentencing judge's findings made under R.C. 2929.14(C)(4) as
falling within a court of appeals' review, the General Assembly plainly intended R.C.
2953.08(G)(2)(a) to be the exclusive means of appellate review of consecutive sentences."
State v. Gwynne, 158 Ohio St.3d 279, 2019-Ohio-4761, ¶ 16. Accordingly, this court can
only modify the trial court's sentence if we were to clearly and convincingly find that the
record does not support the trial court's findings made according to R.C. 2929.14(C)(4).
State v. Velazquez, 12th Dist. Clinton No. CA2020-02-002, 2020-Ohio-4009, ¶ 8.
{¶ 9} Pursuant to the requirements of R.C. 2929.14(C)(4), the trial court found that
(1) the consecutive sentence was "necessary to protect the public from future crime or to
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punish the offender," (2) the consecutive sentences were "not disproportionate to the
seriousness of the offender's conduct and to the danger the offender poses to the public,”
and (3) that at least two of the multiple offenses were committed as a part of "one or more
courses of conduct," and the harm caused by two or more of the multiple offenses was "so
great or unusual" that no single prison term for any of the offenses committed adequately
reflected the seriousness of the offender's conduct. R.C. 292914(C)(4).
{¶ 10} In his assignment of error, appellant challenges the second and third statutory
findings of the trial court. We address them out of order.
REVICTIMIZATION IS A GREAT OR UNUSUAL HARM
{¶ 11} Appellant challenges the third statutory finding of the trial court, asserting that
the harm caused by his multiple offenses was not so great or unusual that it warrants
consecutive sentences. See R.C. 2929.14(C)(4)(b). Appellant alleges that the record
contains only "two passing references to harm." At the sentencing hearing, the prosecutor
stated that appellant "perpetuates the victimization of each of the children that are contained
in these [images]." The court also stated, "[i]f no one viewed it, they wouldn't make it."
Appellant urges this court to find that these "conclusory statements" are insufficient
evidence that the minors depicted in the photos and videos "actually suffered harm." He
suggests that for the victims to be revictimized, the minors must suffer "actual harm," or
otherwise be aware of appellant's conduct, and because the victims did not submit
statements or speak at sentencing, there is no evidence of "actual harm."
{¶ 12} This assertion ignores the well-established legal conclusion that children of
child pornography are continuously revictimized. State v. Bonness, 8th Dist. Cuyahoga No.
96557, 2012-Ohio-474, ¶ 20. The United States Supreme Court has long held that "the
distribution of photographs and films depicting sexual activity by juveniles is intrinsically
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related to the sexual abuse of children." New York v. Ferber, 458 U.S. 747, 759, 102 S.Ct.
3348 (1982). As the Court explained, these materials not only create a "permanent record"
of the child's participation, but the harm to the child is exacerbated by their circulation. Id.To effectively control the production of this material, the distribution network for child
pornography must be closed, which is not possible by pursuing only those who produce the
material; instead, the only practical method is to dry up the market by imposing severe
criminal penalties on persons—like appellant—who promote the product. Id.{¶ 13} Additionally, when amending 18 U.S.C. 2252, the United States Congress
found that "[c]hild pornography is a permanent record of a child's abuse and the distribution
of child pornography images revictimizes the child each time the image is viewed." See
Effective Child Pornography Prosecution Act of 2007, Pub. L. No. 110-358, § 102(3), 122
Stat. 4001 (2008). The Fifth Circuit has also held that individuals who view or circulate child
pornography harm the child "(1) by perpetuating the abuse initiated by the creator of the
material, (2) by invading the child's privacy, and (3) by providing an economic motive for
producers of child pornography." United States v. Norris, 159 F.3d 926, 929-930 (5th
Cir.1998); State v. Starcher, 5th Dist. Stark No. 2015CA00058, 2015-Ohio-5250, ¶ 36.
{¶ 14} Likewise, Ohio courts have held that child pornography is not a victimless
crime, and appellant 's assertion that he simply "commit[ed] crime in his bedroom" ignores
how "the dissemination of that child pornography exacerbates and continues [the]
exploitation of the victimization of that child." State v. Fraley, 12th Dist. Butler No. CA2021-
10-131, 2022-Ohio-3270, ¶ 21. By possessing graphic images of minors depicted in sexual
activity, appellant "enabl[ed] and support[ed] the continued production of child pornography,
which entails continuous direct abuse and victimization of child subjects." State v. Pearce,
12th Dist. Butler No. CA2021-12-161, 2022-Ohio-2617, ¶ 13. Thus, we reject appellant's
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"insinuation that possession of child pornography is not particularly harmful to the children
depicted therein." State v. Smith, 6th Dist. Ottawa No. OT-21-008, 2021-Ohio-4234, ¶ 26.
{¶ 15} In addition to arguing that there was no harm, appellant alternatively argues
that the record does not support a finding that the harm was "great or unusual." However,
the record before the trial court at sentencing "highlights the manner of harm previously
articulated by other courts and embraced by us today." Id. at ¶ 31 (finding that the
information provided by the presentence-investigative report supported the trial court's
determination that the harm caused by appellant's possession of child pornography was
great or unusual).
{¶ 16} Here, the record reflects that ORAS did not accurately capture the appellant's
deviant sexual preferences.1 The indictment detailed the videos and images appellant
downloaded, which included a prepubescent known victim engaged in a sexual act with a
carrot, a prepubescent girl masturbating, a prepubescent girl unknowingly being filmed
while showering, an infant with an adult male finger inserted into the anus, a prepubescent
girl masturbating with a hair brush, a prepubescent female performing fellatio on an adult
male who ejaculates on the child's face, prepubescent females digitally penetrating each
other, a prepubescent female masturbating with a red sex toy, and several other videos and
images of nude prepubescent females. Many of these videos and images were downloaded
more than once and to different accounts.
{¶ 17} Due to the content of the material, an ORAS manual override was performed,
placing appellant in the high range of risk. The record reflected a concern for the amount
of time appellant had been viewing and trading child pornography, which, by his own
admission, began four or five years ago. Appellant admitted that he has made several
1. ORAS, the Ohio Risk Assessment System, identifies factors that drive a person toward negative criminal
behaviors and identifies a person's risk of reoffending.
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attempts to stop this behavior on his own, but he was always unsuccessful. The record
also reflected a concern for appellant's attitude toward his crimes, in that he expressed
some embarrassment and shame, but that he was overall ambivalent about his behavior
and his sexual preferences. At sentencing, the judge asked appellant if it was true that
appellant did not take his conduct seriously, and appellant responded, "yeah." The record
demonstrates that appellant sent large amounts of child pornography to other people over
a long period of time, and that while he recognized the seriousness of his conduct, he never
sought help and he continued to participate regardless of how many times his accounts
were shut down.
{¶ 18} Appellant further argues that based on the plain language of the terms "great"
and "unusual," the harm caused to the children depicted in the videos and images does not
qualify as either. Appellant states that because these terms are not defined in the statute,
we are to use the plain and ordinary meanings of both terms in our analysis. Appellant
defines "great" as "akin to being such in an extreme or notable degree," and he defines
"unusual" as something that is "not usual, common, or ordinary." He thus concludes that
the trial court was required to find that the harm to the minors be "extreme," "uncommon,"
or "exceptional" to impose consecutive sentences.
{¶ 19} Given the widespread use of social media platforms and online storage
spaces, as well as the instantaneous transfer of information facilitated by this technology,
there is no guarantee that any pornographic image or video of a child will ever be
permanently removed from every space from which it could be retrieved. Regardless of
how victims of child pornography progress through the remainder of their lives, these
images have the possibility of living on indefinitely. To reiterate the United States Supreme
Court, these images create a "permanent record." As a result of this permanence, we find
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it difficult to describe this harm as anything other than extreme, uncommon, and
exceptional.
DANGER TO THE PUBLIC
{¶ 20} Appellant also challenges the trial court's second statutory finding, alleging
that his prison sentence is grossly disproportionate to any danger he might pose to the
public. Appellant's proffered reasons for why "the record does not reflect that [he] put a
member of the general public at risk," include (1) that he committed these crimes from his
bedroom, (2) that the probation department viewed community control as a reasonable
sentencing option, and (3) that the ORAS evaluation categorized him as a "low risk" to
commit future crime because he had no contact with the criminal justice system prior to
these convictions.
{¶ 21} Appellant's argument that he never put a member of the general public at risk
by confining his criminal behavior to his bedroom is not well-taken. As discussed above,
consumers of child pornography victimize the children depicted therein by "enabling and
supporting the continued production of child pornography, which entails continuous direct
abuse and victimization of child subjects." State v. Boggs, 12th Dist. Butler No. CA2019-
07-114, 2020-Ohio-2881, ¶ 14. We also note that while the probation department gave
some general parameters and guidelines to the court regarding community control, nothing
in the record suggests that the probation department regarded community control to be a
proper alternative to incarceration.
{¶ 22} Further, Ohio courts have found that there "are no specific statutory factors
for the danger-to-the-public finding." State v. Mitchell, 8th Dist. Cuyahoga No. 105053,
2017-Ohio-6888, ¶ 13; State v. Kiefer, 6th Dist. Ottawa No. OT-21-005, 2021-Ohio-3059, ¶
18. While recidivism may indicate the danger an offender poses to the public, R.C.
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2929.14(C) requires the trial court to find that consecutive sentences are not
disproportionate to that danger, whatever it may be. Kiefer at ¶ 18. Thus, appellant must
show through clear and convincing evidence that the trial court erred in finding that the
consecutive sentences were not disproportionate to the danger he posed to the public.
{¶ 23} Appellant's "lack of a prior criminal record * * * is not by itself dispositive of
whether he may reoffend and, in the process, remain a danger to the public." State v. Balbi,
8th Dist. Cuyahoga No. 102321, 2015-Ohio-4075, ¶ 11. As noted by the trial court at
appellant's sentencing, "recidivism may be likely because the offenses continued over a
period of time in a continuing course of conduct * * * which included several attempts to
discontinue these activities, only to eventually repeat the same behaviors." While appellant
attempts to paint his behavior as "on-again, off-again," appellant opened seven different
Snapchat accounts over the past several years, all of which were used to access and trade
child pornography. Each time appellant's account was shut down, he would register a new
email address with a new account so that he could continue this behavior.
{¶ 24} Appellant fails to explain how the imposition of consecutive sentences was
disproportionate to the danger he poses to the public, particularly in light of nature of the
content he viewed, his awareness of its severity, and his undeterred and continuous
participation in the trading of pornographic images and videos involving children. We find
that appellant failed to meet his burden of identifying clear and convincing evidence that the
trial court's finding is not supported by the record.
{¶ 25} As a separate argument, appellant asserts that consecutive sentences are
inappropriate where it "demean[s] the seriousness of other more violent crimes and harms
to other victims," citing State v. Hawley, 8th Dist. Cuyahoga No. 108254, 2020-Ohio-1270,
¶ 25. We note that appellant misplaces the Eighth District's discussion in Hawley. In
reviewing whether Hawley's 56-year prison sentence demeaned the seriousness of other
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crimes, the Eighth District examined whether the sentence was "reasonably calculated to
achieve the overriding purposes of felony sentencing set forth in R.C. 2929.11." In other
words, the court analyzed whether Hawley's sentence was contrary to law.2 Appellant does
not assert that his sentence is contrary to law, and thus a discussion of whether his
sentence may demean the seriousness of other crimes and the harm to other victims is not
relevant to his challenge.3
CONCLUSION
{¶ 26} Appellant's "portrayal of this case as a run-of-the-mill child pornography
possession case minimizes the true severity of the harm" caused to the children depicted
in the videos and images that were found on appellant's various accounts. State v. Smith,
2021-Ohio-4234 at ¶ 32. Given the nature of the content in appellant's possession, as well
as the length of time over which appellant viewed this content, we find that the record
supports the trial court's determination that consecutive sentences were appropriate.
Accordingly, appellant's sole assignment of error is overruled.
{¶ 27} Judgment affirmed.
HENDRICKSON and PIPER, JJ., concur.
2. A sentence is not clearly and convincingly contrary to law where the trial court "considers the principles
and purposes of R.C. 2929.11, as well as the factors listed in R.C. 2929.12." State v. Miller, 12th Dist. Butler
No. CA2021-07-079, 2022-Ohio-1438, ¶ 7.
3. We note, however, that regardless of the applicability of this argument, Ohio appellate courts have upheld
terms similar to appellant's for similar offenders. State v. Duhamel, 8th Dist. Cuyahoga No. 102346, 2015-
Ohio-3145 (affirmed a 15-year sentence for 29 counts related to child pornography found on defendant's home
computer); State v. Smith, 6th Dist. Ottawa No. OT-21-008, 2021-Ohio-4234 (affirmed a 15-year sentence for
100 counts related to child pornography found on defendant's laptop computer and thumb drive); State v.
Geddes, 8th Dist. Cuyahoga No. 91042, 2008-Ohio-6489 (affirmed an 18-year sentence for six separate
convictions of pandering sexually-oriented material involving a minor); State v. Pearce, 12th Dist. Butler No.
CA2021-12-161, 2022-Ohio-2617 (affirming a 16-year sentence for 23 counts related to child pornography).
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