State v. Boyd

[Cite as State v. Boyd, 2022-Ohio-4749.]
IN THE COURT OF APPEALS OF OHIO
SEVENTH APPELLATE DISTRICT
MAHONING COUNTY
STATE OF OHIO,
Plaintiff- Appellee,
v.
ROBERT BOYD,
Defendant- Appellant.
OPINION AND JUDGMENT ENTRY
Case No. 20 MA 0131
Application for Reconsideration
BEFORE:
Carol Ann Robb, Gene Donofrio, Cheryl L. Waite, Judges.
JUDGMENT:
Denied.
Atty. Paul J. Gains, Mahoning County Prosecutor, Atty. Ralph M. Rivera, Assistant
Chief, Criminal Division, Mahoning County Prosecutor’s Office, 21 West Boardman
Street, 6th Floor, Youngstown, Ohio 44503, for Plaintiff-Appellee and
Robert W. Boyd, pro se, P.O. Box 300, Orient, Ohio 43146 Defendant-Appellant.
Dated: December 23, 2022
–2–
PER CURIAM.
{¶1} On October 17, 2022, Defendant-Appellant Robert Boyd filed an application
for reconsideration of our September 30, 2022 decision affirming his convictions entered
after a jury trial in the Mahoning County Common Pleas Court. For the following reasons,
the application is denied.
{¶2} An application for reconsideration shall be filed “no later than ten days after
the clerk has both mailed to the parties the judgment or order in question and made a
note on the docket of the mailing as required by App. R. 30(A).” App.R. 26(A)(1)(a). The
cited App.R. 30(A) provides: “Notice of Orders or Judgments. Immediately upon the entry
of an order or judgment, the clerk shall serve by mail a notice of entry upon each party to
the proceeding and shall make a note in the docket of the mailing. Service on a party
represented by counsel shall be made on counsel.”
{¶3} Appellant’s application says the date the clerk noted the mailing on the
docket was “October 3, 2015” (clearly, he meant to say 2022.) However, this October 3
date is not supported by the official docket of the Mahoning County Clerk of Courts.1 On
the same September 30, 2022 date our judgment was filed, the clerk issued notice of the
judgment to Appellant’s counsel through its electronic filing system and made a note on
the docket of this electronic mailing. Any application for reconsideration was due on
Tuesday, October 11, 2022 (as Monday was Columbus Day). However, Appellant’s
application was not filed until October 17, 2022.
{¶4} The introduction to Appellant’s application says, “this October 5, 2022
application is timely since it was mailed within the 10-day time limit.” Rather than use
Mahoning County’s e-filing system, Appellant attached his signed “declaration” to the end
of the application, declaring it was placed in the prison mailing system on October 5, 2022.
A separate page contains a notarization generally stating, “Sworn to or affirmed and
subscribed before me by Robert Boyd” on October 5, 2022.
{¶5} Pursuant to App.R. 14(C), “Whenever a party has the right or is required to
do some act or take some proceedings within a prescribed period after service of a notice
1 We note a copy of the opinion was posted on the Ohio Supreme Court’s website on October 3, 2022.
Case No. 20 MA 0131
–3–
or other document upon that party and the notice or paper is served upon the party by
mail or commercial carrier service under App.R. 13(C)(4), three days shall be added to
the prescribed period.” However, “the three-day mail rule in App.R. 14(C) is inapplicable
to applications for reconsideration.” State v. Panezich, 7th Dist. Mahoning No. 17 MA
0087, 2018-Ohio-3974, ¶ 2, citing, e.g., Summitcrest, Inc. v. Eric Petroleum Corp., 7th
Dist. Columbiana No. 12 CO 0055, 2016-Ohio-3381, ¶ 4. This is because the trigger for
the commencement of the ten-day period is not “service of a notice” but is when “both”
the judgment is mailed by the clerk and the clerk makes notation on the docket of the
mailing. Peters v. Tipton, 7th Dist. Harrison No. 13 HA 10, 2015-Ohio-3307, ¶ 8. In any
event, an additional three days would not render Appellant’s application timely.
{¶6} Appellant seems to be invoking a “prison mailbox rule”; however, this
concept is not recognized in Ohio. See, e.g., State v. Garrett, 7th Dist. Belmont No. 06
BE 67, 2007-Ohio-7212, ¶ 12 (“there is no longer a prisoner's mailbox rule in Ohio”); State
v. Harris, 6th Dist. Erie No. E-04-038, 2005-Ohio-921, ¶ 6 (reconsideration application
was not filed when it was delivered to the prison mailroom), applying State ex rel. Tyler v.
Alexander, 52 Ohio St.3d 84, 85, 555 N.E.2d 966 (1990) (a notice of appeal is not filed in
the court when it is delivered to the warden of a prison). “[A]ny document is considered
filed when it is filed with the clerk of court, and not when it is placed in the prison mailing
system.” State v. Williams, 157 Ohio App.3d 374, 2004-Ohio-2857, ¶ 12 (8th Dist.) (post-
conviction petition). See also State v. Springs, 7th Dist. Mahoning No. 97 CA 68 (Mar.
11, 1999), fn.1 (document is filed when it is received by the court, rather than when it is
turned over to prison authorities for mailing).
{¶7} Appellant’s application for reconsideration is therefore untimely.
Consequently, we turn to the rule applicable to delayed reconsideration motions.
{¶8} “For good cause shown, the court, upon motion, may enlarge or reduce the
time prescribed by these rules or by its order for doing any act, or may permit an act to
be done after the expiration of the prescribed time.” App.R. 26(A) (except a notice of
appeal or a motion to certify a conflict). However, [e]nlargement of time to file an
application for reconsideration or for en banc consideration pursuant to App. R. 26(A)
shall not be granted except on a showing of extraordinary circumstances.
Case No. 20 MA 0131
–4–
{¶9} In evaluating the demonstration of extraordinary circumstances, we
consider the reasons for the delay and the reasons for the application. “A motion for
reconsideration can be entertained even though it was filed beyond the ten-day limitation
provided for by the rule if the motion raises an issue of sufficient importance to warrant
entertaining it beyond the ten-day limit.” Summitcrest, 7th Dist. No. 12 CO 0055 at ¶ 5,
quoting State v. Dew, 7th Dist. No. 08MA62, 2014-Ohio-4042, ¶ 7.
{¶10} “In order to prevail on an application for reconsideration, an appellant must
demonstrate an obvious error in our decision or that an issue was raised that was either
not dealt with or was not fully considered.” State v. Carosiello, 7th Dist. Columbiana No.
15 CO 0017, 2018-Ohio-860, ¶ 12. “Mere disagreement with this Court's logic and
conclusions does not support an application for reconsideration.” Id. See also Victory
White Metal Co. v. Motel Syst., Inc., 7th Dist. No. 04 MA 245, 2005-Ohio-3828, ¶ 2 (the
purpose of reconsideration is not to reargue one's appeal based on dissatisfaction with
the logic used and conclusions reached by an appellate court); Hampton v. Ahmed, 7th
Dist. No. 02 BE 66, 2005-Ohio-1766, ¶ 16 (“An application for reconsideration may not
be filed simply on the basis that a party disagrees with the prior appellate court decision.”).
Moreover, it is not a chance to present a new argument to the appellate court. State v.
Wellington, 7th Dist. No. 14 MA 0115, 2015-Ohio-2095, ¶ 9.
{¶11} Appellant’s application sets forth three arguments. The state responded,
and instead of filing a reply, Appellant attempted to amend his application on October 31,
2022 (the day his reply was due). We note he used the e-filing system. Appellant’s
amendment attempts to add three new arguments that were not contained in the original
untimely application. Appellant demonstrates no obvious error and merely disagrees with
our reasoning on suppression and sufficiency, topics that were fully addressed in our
opinion. In any event, a reconsideration application amendment to set forth additional
grounds is not provided in the rules and is unwarranted, especially since the state already
responded to the application. Moreover, Appellant’s amendment was attempted without
leave of court and without providing good cause or extraordinary circumstances for a
further untimely filing. Any implicit request for leave is denied, and Appellant’s
amendment will not be further addressed. We therefore move to the three arguments
addressed in the untimely reconsideration application.
Case No. 20 MA 0131
–5–
{¶12} First, Appellant claims there was insufficient evidence to support counts five
and six (the misdemeanor counts of disseminating matter harmful to juveniles) based on
Appellant texting photographs of his penis to a sixteen-year-old boy. See R.C.
2907.31(A)(1) (“No person with knowledge of its character or content, shall recklessly * *
* Directly sell, deliver, furnish, disseminate, provide, exhibit, rent, or present to a juvenile
* * * any material or performance that is obscene or harmful to juveniles”), (F)
(misdemeanor if harmful, felony if obscene).
{¶13} Appellant complains we said a rational juror could find he was reckless in
believing victim C was 18 years or older in the second section of his second assignment
of error. State v. Boyd, 7th Dist. Mahoning No. 20 MA 0131, 2022-Ohio-3523, ¶ 67. He
points to division (D)(1) of the statute defining the offense, which states: “A person directly
sells, delivers, furnishes, disseminates, provides, exhibits, rents, or presents * * * material
or a performance to a juvenile * * * by means of an electronic method of remotely
transmitting information if the person knows or has reason to believe that the person
receiving the information is a juvenile * * *.” R.C. 2907.31(D)(1). The trial court instructed
the jury using the language in both (A)(1) and (D)(1). (Tr. 770-773). Appellant’s brief
quoted the definition of recklessness in R.C. 2901.22(C) and argued the state failed to
present sufficient evidence that he was reckless as to the victim’s age. (Apt.Br. at 19).
He asked for a review of recklessness without citing division (D) or arguing recklessness
was not an equivalent test. We addressed the argument he raised.
{¶14} In doing so, we quoted the statutory definition of recklessness as
disregarding a substantial and unjustifiable risk that circumstances are likely to exist with
heedless indifference. Boyd, 2022-Ohio-3523 at ¶ 62, citing R.C. 2901.22(C).
Additionally, we pointed out the mental state of recklessness involves “good reason for
expectation or belief.” (Emphasis added.) Id., citing State v. Young, 8th Dist. Cuyahoga
No. 85224, 2005-Ohio-3584, ¶ 17, citing Staff Note to R.C. 2901.22(C). Emphasizing
circumstantial evidence has the same probative value as direct evidence, we reviewed
the evidence showing Appellant had a good reason to believe the recipient of his texts
was under 18 years of age, including: the photograph of the victim viewed by the jury
from the time of the texts; the fact Appellant engaged in a sexual encounter with the
Case No. 20 MA 0131
–6–
sixteen-year-old three months before the texts at issue; and the information provided to
him by the victim about being in school and having no driver’s license. Id. at ¶ 63-67.
{¶15} Contrary to the suggestion in Appellant’s application, we essentially found
a rational juror could conclude Appellant had “reason to believe” the recipient of his penis
texts was a juvenile as the language is used in R.C. 2907.31(D)(1). 2 Appellant’s
remaining contentions on counts four and five represent mere disagreement with the logic
used in reaching this conclusion.
{¶16} Second, Appellant’s application for reconsideration contests our conclusion
in the third section of his second assignment of error where we ruled the state presented
sufficient evidence to support counts seven through fifteen. These counts of illegal use
of a minor in nudity-oriented material were based on photographs contained on his hard
drive. R.C. 2907.323(A)(3). Contrary to a claim Appellant apparently cut from the case
of another defendant (“Osborne”), the trial court instructed on recklessness for these
offenses, and this court specifically recognized the mental state of recklessness applied.
Boyd, 2022-Ohio-3523 at ¶ 68, citing State v. Young, 37 Ohio St.3d 249, 252, 525 N.E.2d
1363 (1988), paragraph three of syllabus; (Tr. 773-781, citing 769-770).
{¶17} As to the argument Appellant presented on appeal, we agreed the Ohio
Supreme Court construed the statute as prohibiting nudity only “where such nudity
constitutes a lewd exhibition or involves a graphic focus on the genitals * * *.” Id. at ¶ 69,
quoting Young, 37 Ohio St.3d at 252. We then concluded some rational juror could find
this test satisfied. Id. at ¶ 70-75. Appellant’s application for reconsideration simply
disagrees with our conclusion and logic.
{¶18} Third, Appellant’s application for reconsideration argues this court
erroneously rejected his suppression argument on the initial search of his social media
data as set forth in his first assignment of error of his brief. He contends there was only
2 Appellant also cites division (D)(2), which states a “person remotely transmitting information by means of
a method of mass distribution” does not violate the “directly sell, deliver [etc.]” provision if: (a) the sender
has inadequate information to know or have reason to believe a particular recipient is a juvenile or (b) the
method of mass distribution does not provide the ability to prevent a particular recipient from viewing the
information. R.C. 2307.31(D)(2). Appellant did not transmit the information by means of a method of mass
distribution but directly texted one phone number he was given by the phone user. In any event his
application relies on (a), and because we found he had good reason to believe the recipient was a juvenile,
our reasoning and conclusion necessarily rejected any theory that Appellant had “inadequate information
to * * * have reason to believe” victim C was a juvenile.
Case No. 20 MA 0131
–7–
probable cause to search his Instagram account for specific communications with the one
juvenile who reported him to the police. He cites an out-of-state appellate case, which is
not binding (and is an unpublished opinion restricted from being cited in that state by
Cal.Rules of Court, Rule 8.1115). See People v. Osejo, Cal.App. No. A143092, 2017 WL
2351439 (May 31, 2017). In any event, the case is distinguishable as those officers only
had evidence of the defendant’s illegal conduct toward one child.
{¶19} The indictment in this case did not contain charges for providing illegal
products to minors, but this was the basis for the initial investigation. As we explained,
the police had evidence that Appellant’s conduct involved more than the first-reporting
juvenile. Boyd, 2022-Ohio-3523 at ¶ 13-22. This fifteen-year-old’s father contacted police
upon intercepting messages about juveniles obtaining alcohol and tobacco from Appellant
(posing as his son to extract information from a juvenile asking his son to go with him to
Appellant’s house for illegal items). The police were provided with screenshots of
conversations involving the second juvenile’s incrimination of Appellant. The first-
reporting juvenile then admitted Appellant bought him alcohol and tobacco products, and
the police were given screenshots of messages from Appellant setting up the illegal
deliveries.
{¶20} Furthermore, they were provided a screenshot of a message from the first-
reporting juvenile to a friend revealing Appellant provided him rides and free items while
asking the juvenile to submit to fellatio. Appellant asked this juvenile to delete messages,
which the juvenile did as to some communications. Regardless of the officer’s final
suppression hearing statement on probable cause for importuning or soliciting, the first-
reporting juvenile personally disclosed to the police officer that Appellant asked if he could
perform fellatio on the child, and as we pointed out, importuning is committed by a mere
request of sexual conduct to a child of this age without involving soliciting sex for hire.
Boyd, 2022-Ohio-3523 at fn.2, citing R.C. 2907.07.3 In addition, the police were provided
screenshots of a conversation showing another juvenile was complaining to the reporting
3 In the context of the importuning offense, “just asking” is sufficient to constitute the solicit element. See
generally State v. Thompson, 95 Ohio St.3d 264, 2002-Ohio-2124, 767 N.E.2d 251, ¶ 7. Courts have
adopted the Ohio Jury Instructions, which define the solicit element for importuning as “to seek, to ask, to
influence, to invite, to tempt, to lead on, or to bring pressure to bear. State v. Knight, 6th Dist. Erie No. E-
21-017, 2022-Ohio-1787, ¶ 61; State v. Petty, 10th Dist. Franklin No. 15AP-950, 2017-Ohio-1062, ¶ 77.
Case No. 20 MA 0131
–8–
juvenile of their own experience with Appellant requesting nude pictures in exchange for
a ride, offering to provide help in exchange for nude cleaning services, and asking for sex
via a threesome.
{¶21} We rejected Appellant’s initial suppression argument presented in
Appellant’s brief by finding the initial search warrant was not overbroad but rather was as
specific as the circumstances allowed, with probable cause supporting a search of the
social media data at issue for the limited two-month date range. Id. at ¶ 21-22. Appellant
disagrees with our conclusion and logic, but there is no obvious error or failure to address
an issue presented for review.
{¶22} For the foregoing reasons, Appellant’s application is untimely, and the
issues presented are not compelling or of sufficient importance to waive the deadline for
reconsideration. Even assuming arguendo the delay during mailing constituted an
extraordinary circumstance itself and we exercise our discretion to excuse the untimely
filing, reconsideration is not warranted in this case.
JUDGE CAROL ANN ROBB
JUDGE GENE DONOFRIO
JUDGE CHERYL L. WAITE
NOTICE TO COUNSEL
This document constitutes a final judgment entry.
Case No. 20 MA 0131