State v. Moore

[Cite as State v. Moore, 2017-Ohio-1307.]
IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
MONTGOMERY COUNTY
STATE OF OHIO :
:
Plaintiff-Appellant : Appellate Case No. 27196
:
v. : Trial Court Case No. 2015-CR-1738
:
PATRICK JOSEPH MOORE, III : (Criminal Appeal from
: Common Pleas Court)
Defendant-Appellee :
:
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OPINION
Rendered on the 7th day of April, 2017.
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MATHIAS H. HECK, JR., by ANDREW T. FRENCH, Atty. Reg. No. 0069384, Assistant
Prosecuting Attorney, Montgomery County Prosecutor’s Office, Appellate Division,
Montgomery County Courts Building, 301 West Third Street, Dayton, Ohio 45422
Attorney for Plaintiff-Appellant
MICHAEL P. BRUSH, Atty. Reg. No. 0080981, 2233 Miamisburg-Centerville Road,
Dayton, Ohio 45459
Attorney for Defendant-Appellee
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TUCKER, J.
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{¶ 1} The State appeals from an order dismissing charges against defendant-
appellee Patrick Moore. The State contends that the trial court erred in finding that
Moore’s speedy trial and due process rights were violated. We conclude that the record
does not support a finding that Moore’s rights to a speedy trial or due process were
violated. Accordingly, the judgment of the trial court is Reversed and Remanded.
I. Facts and Procedural History
{¶ 2} In 2009, the Dayton Police Department conducted a sting operation in which
an officer, pretending to be a minor, engaged in on-line contact with adults. During the
course of the operation Moore, using his personal computer, sent nude pictures of himself
to the officer. The images showed Moore engaging in sexual behavior. Moore also
used his Blackberry cellular telephone to call and text the officer. On November 13,
2009, Moore was arrested and his cell phone was seized as evidence.
{¶ 3} Moore was indicted on four counts of importuning, one count of possession
of criminal tools (the Blackberry phone), one count of attempt to commit unlawful sexual
contact with a minor, and six counts of disseminating matter harmful to juveniles.
Following plea negotiations, Moore entered a plea of guilty to one count of importuning
and one count of disseminating matter harmful to a juvenile. The remaining charges
were dismissed, and Moore was sentenced to community control.
{¶ 4} Moore’s cell phone remained in the Dayton Police Department property room
until 2015, when it was marked for destruction under department guidelines. Prior to
being sent out for destruction, the memory card was removed and placed in a plastic bag
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along with the memory cards removed from other phones slated for destruction. Upon
inspection, the card from Moore’s phone was found to have child pornography stored on
it.
{¶ 5} On September 24, 2015, Moore was indicted on 26 counts of illegal use of a
minor in nudity-oriented material or performance and one count of pandering sexually-
oriented material involving a minor. He filed a motion to dismiss the indictment arguing
that the new charges arose from the same set of facts and circumstances as the earlier
adjudicated charges. Thus, he claimed violations of both his speedy trial and due
process rights. A hearing was conducted before the trial court.
{¶ 6} At the hearing, Sergeant Jeffrey Yaney, Dayton Police Department Property
Evidence Storage Supervisor, testified that department policy requires that evidence in
felony cases be retained for three to five years after conviction. He testified that the
evidence is then destroyed, but that there is no set format for the manner in which
evidence is destroyed. However, he routinely destroys cell phones by sending them to
a third-party recycling company. Yaney testified that he generally gathers phones that
are ready for destruction twice a year. He also testified that he removes the memory
cards from the phones in order to prevent any private information from being
disseminated. Yaney testified that in early 2015 he pulled Moore’s phone for destruction.
He testified that he placed the memory card, along with cards from other phones, into a
plastic bag which he then gave to Detective Mont Rodrigues. He testified that Rodrigues
wanted to reformat the cards so that they could be recycled and reused by the department
for other purposes. Yaney testified that he also asked Rodrigues to review the memory
cards for identifying information so that, in the case of lost phones turned in to the police
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department, he could return the cards to their owners. However, he did not separate the
memory cards of phones seized as evidence from those that had merely been turned in
as lost.
{¶ 7} While attempting to reformat Moore’s memory card, Rodrigues discovered a
folder that contained over 500 pictures of what appeared to be nude minors along with
two videos of children engaging in sexual conduct. He also found a picture of a
prescription for Moore. An investigation confirmed that the images involved minors.
{¶ 8} Dayton Police Detective Raymond St. Clair testified that he was the lead
detective, and undercover officer, on the 2009 investigation. He testified that he
engaged in a computer video chat with Moore, and that nude pictures of Moore appeared
on St. Clair’s computer screen during the course of the exchange. St. Clair testified that
it appeared Moore had used a camera attached to Moore’s own computer to transmit the
images. He testified that he seized Moore’s phone during that investigation because
Moore used it to text and make calls to St. Clair, whom Moore believed to be a 15 year
old girl. St. Clair testified that he only searched the phone for the call log and text
messages. St. Clair further testified that the 2009 investigation did not involve child
pornography because Moore did not request pictures of the “minor,” and there was no
reason to believe that pictures of nude minors would be on the phone.
{¶ 9} The parties stipulated that the court could take judicial notice of the case file
and docket from the earlier case. Following the hearing, the trial court concluded that
Moore’s right to a speedy trial was violated because the police could have discovered the
child pornography when the cell phone was seized in 2009. The court also found a
violation of Moore’s due process rights.
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{¶ 10} The State appeals.
II. The State Did Not Violate Moore’s Right to a Speedy Trial.
{¶ 11} The first assignment of error asserted by the State provides:
THE TRIAL COURT ERRED IN FINDING THAT THE STATE VIOLATED
MOORE’S STATUTORY RIGHT TO A SPEEDY TRIAL.
{¶ 12} The State contends that it did not violate the speedy trial requirement
because it was not aware of the pictures and videos contained on the memory card and
because the charges in this case differ from the offenses in the original indictment.
{¶ 13} The right to a speedy trial is guaranteed by the Sixth Amendment to the
United States Constitution and Article I, Section 10 of the Ohio Constitution. “In Ohio,
that right is implemented by the statutory scheme imposing specific time limits in R.C.
2945.71 et seq.” State v. Kerby, 162 Ohio App.3d 353, 2005-Ohio-3734, 833 N.E.2d
757, ¶ 17 (2d Dist.), citing State v. Pachay, 64 Ohio St.2d 218, 221, 416 N.E.2d 589(1980). R.C. 2945.71(C)(2) requires the state to bring a person against whom a felony
charge is pending to trial within 270 days after the person's arrest. Speedy trial
provisions are mandatory, and thus, strictly enforced. State v. Williams, 2d Dist.
Montgomery No. 18893, 2002 WL 63298, * 1 (Jan. 18, 2002).
{¶ 14} The Ohio Supreme Court has dealt with the speedy-trial issue as it relates
to multiple indictments. “When new and additional charges arise from the same facts as
did the original charge and the state knew of such facts at the time of the initial indictment,
the time within which trial is to begin on the additional charge is subject to the same
statutory limitations period that is applied to the original charge.” State v. Adams, 43
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Ohio St.3d 67, 68, 538 N.E.2d 1025 (1989), quoting State v. Clay, 9 Ohio App.3d 216,
459 N.E.2d 609 (11th Dist. 1983). The Supreme Court later held that when the State
issues a subsequent indictment, it is not subject to the speedy trial time limits of the initial
indictment when additional criminal charges arise from facts different from the original
charges and the State had no knowledge of these facts at the time of the initial indictment.
State v. Baker, 78 Ohio St.3d 108, 111, 676 N.E.2d 883 (1997).
{¶ 15} In this case, the trial court found that Baker does not apply. The trial court
reasoned that the State “did not know of the images on the memory card simply because
it chose not to conduct a thorough search of the phone it had seized.” The trial court
cited to State v. Matthews, 2d Dist. Montgomery No. 23051, 2009-Ohio-6694, for the
proposition that when the information supporting a subsequent indictment is in the state’s
possession and control, the speedy trial limitations period applicable to the later actions
commences to run on the same date as the earlier action. Id. at ¶ 8. We conclude that
Matthews, based upon the facts of this case, is inapposite.
{¶ 16} In Matthews, the defendant, Curtis Matthews, was convicted for theft by
deception after he used “his own driver’s license and a falsified license issued to ‘Curtis
Lawrey’ to obtain food stamps.” Id. at ¶ 3. He was later indicted for tampering with
records “arising from his conduct in obtaining a falsified driver’s license.” Id. at ¶ 2.
Matthews filed a motion to dismiss the later indictment arguing that his right to a speedy
trial was violated. Id. at ¶ 3. The trial court did not conduct a hearing, but granted the
motion upon concluding that “the State had knowledge that these ‘different persons’ [on
the two licenses] were one and the same person, which knowledge formed the basis for
its [earlier] indictment.” Id. at ¶ 5.
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{¶ 17} On appeal, we noted that “the Baker exceptions are not concerned with
whether the charges in the prior and subsequent actions allege different grounds for
criminal liability. The question is whether in order to prove the charges in both cases the
State must prove a set of facts common to both charges, and whether the State knew of
those facts when the earlier action was filed.” Matthews at ¶ 9. In other words, “to
prevail on his speedy trial motion, [Matthews] was required to show that the State was
aware [in the earlier case] that [he] had obtained a falsified driver’s license, not merely
that he used a falsified license to commit a theft.” Id. at ¶ 10. We remanded the matter
because we found the trial court erred by failing to conduct an evidentiary hearing. Id.
at ¶ 12.
{¶ 18} At the evidentiary hearing following remand, Matthews submitted “the
discovery packet that the State of Ohio provided to [his] counsel for the [earlier] theft case.
Contained therein were copies of each of [Matthews’] driver’s licenses and LEADS
images of [Matthews] which include the two separate photographs, each of [Matthews],
from the respective driver’s licenses. Also included [was an] investigator’s report
documenting an interview with [Matthews’] mother which confirmed that [he] did not have
a twin.” State v. Matthews, 2d Dist. Montgomery No. 23953, 2011-Ohio-2067, ¶ 7. The
trial court, again, dismissed the indictment. Id. at ¶ 10. We affirmed, noting that the
State was aware of the existence of the two licenses, and the pictures in the State’s own
database established that Matthews was the person who had applied for and acquired
both licenses. Id. at ¶ 17 and 23.
{¶ 19} We find the facts in Matthews distinguishable from this case. This record
is devoid of any evidence to support a finding that the State was aware of the existence
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of the child pornography contained on Moore’s phone. Further, the only fact common to
both charges is that evidence in both cases was contained on Moore’s phone, albeit in
different files on the phone. Moore does not claim, nor can we conclude, that the child
pornography stored on the phone had relevance to the charges from the 2009 case. St.
Clair testified regarding the fact that he needed the phone in the prior case for the sole
purpose of demonstrating that Moore had called and texted the “minor” in the police sting.
He further testified that there was nothing to indicate that Moore had child pornography
on the phone, as Moore did not seek nude photos of the “minor.”
{¶ 20} The trial court’s holding places a duty on the police to completely search the
contents of the phone simply because it was in their possession. But Matthews does not
set forth such a requirement. The involvement of the phone as a criminal tool in the 2009
case was limited to calling and texting. There was nothing to indicate that Moore
collected and stored child pornography on it. As St. Clair stated, he only needed to show
that Moore was using the phone to text and call the “minor” in order to prove the charges
in the 2009 case.
{¶ 21} On these facts, we conclude that the trial court erred in finding that the State
violated Moore’s right to a speedy trial. The first assignment of error is sustained.
III. The State Did Not Violate Moore’s Right to Due Process.
{¶ 22} The State’s second assignment of error is as follows:
THE TRIAL COURT ERRED IN FINDING THAT MOORE’S RIGHT TO DUE
PROCESS WAS VIOLATED BY PREINDICTMENT DELAY.
{¶ 23} Moore contends that he has suffered actual prejudice due to the delay in
time between the indictments. Specifically, he argues that since the phone is no longer
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available, he cannot submit it to expert analysis. Thus, he claims that there is no way to
determine “how, when, or by whom the alleged illegal content was added to the memory
card.” Moore contends it is possible the memory card came pre-loaded with the images
at the time he acquired it. He further argues that he has “lost his ability to make a chain
of custody argument.”
{¶ 24} Delay between a defendant’s involvement in alleged criminal conduct and
an indictment involving such conduct may deprive a defendant of his constitutionally
protected due process rights. State v. Luck, 15 Ohio St.3d 150, 472 N.E.2d 1097 (1984),
paragraph 2 of the syllabus. In State v. Jones, 148 Ohio St.3d 167, 2016-Ohio-5105, 69
N.E.3d 688, the Ohio Supreme Court recently reiterated that “* * * preindictment delay
violates due process only when it is unjustifiable and causes actual prejudice.” Id. at ¶
12. The court also reaffirmed its firmly established “burden-shifting framework for
analyzing a due-process claim based on preindictment delay [which states that] [o]nce a
defendant presents evidence of actual prejudice, the burden shifts to the state to produce
evidence of a justifiable reason for the delay.” Id. at ¶ 13, citing State v. Whiting, 84 Ohio
St.3d 215, 217, 702 N.E.2d 1199 (1998); State v. Adams, 144 Ohio St.3d 429, 2015-Ohio-
3954, 45 N.E.3d 127, ¶ 99.
{¶ 25} A reviewing court must scrutinize a defendant's claim of prejudice by
“consider[ing] the evidence as it exists when the indictment is filed and the prejudice the
defendant will suffer at trial due to the delay.” Jones, 148 Ohio St.3d 167, 2016-Ohio-
5105, 69 N.E.3d 688, ¶ 20. “* * * [S]peculative prejudice does not satisfy the defendant's
burden.” Id. “Actual prejudice exists when missing evidence or unavailable testimony,
identified by the defendant and relevant to the defense, would minimize or eliminate the
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impact of the state's evidence and bolster the defense.” Id. at ¶ 28.
{¶ 26} We find Moore’s argument speculative at best. Indeed, he appears to
contradict his own argument that the phone is necessary for a determination of whether
he downloaded the pornography. As he notes, Rodrigues’s testimony indicates that “the
possibilities of how the alleged illegal information ended up on [his] memory card are
endless[,]” as memory cards can store data without a phone. Thus, under his own
argument, it follows that he could have downloaded the images independent, and without
the use, of the cell phone.
{¶ 27} Moore’s claim that he cannot make a chain of custody argument also lacks
merit. “Breaks in the chain of custody go to the weight afforded the evidence - not the
admissibility of the evidence.” State v. Rajchel, 2d Dist. Montgomery No. 19633, 2003-
Ohio-3975, ¶ 21. Nothing in this case prevents him from arguing that the State failed to
maintain an adequate chain of custody after the memory card was removed from the
phone.
{¶ 28} We conclude that Moore has failed to establish actual prejudice. Thus, we
need not address whether the delay was justifiable. However, given our resolution of the
first assignment of error, we conclude that the State established reasonable justification
for the delay. Accordingly, the second assignment of error is sustained.
IV. Conclusion
{¶ 29} The State’s assignments of error being sustained, the judgment of the trial
court is reversed and this cause is remanded to the trial court for further proceedings
consistent with this opinion.
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HALL, P.J. and WELBAUM, J., concur.
Copies mailed to:
Mathias H. Heck, Jr.
Andrew T. French
Michael P. Brush
Hon. Richard Skelton