State v. Stutz

[Cite as State v. Stutz, 2023-Ohio-1082.]
IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
MONTGOMERY COUNTY
STATE OF OHIO :
:
Appellee : C.A. No. 29521
:
v. : Trial Court Case No. 2020 CR 01817
:
CHARLES DD STUTZ : (Criminal Appeal from Common Pleas
: Court)
Appellant :
:
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OPINION
Rendered on March 31, 2023
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MATHIAS H. HECK, JR., by ELIZABETH A. ELLIS, Attorney for Appellee
CHARLES M. BLUE, Attorney for Appellant
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EPLEY, J.
{¶ 1} Defendant-Appellant Charles Stutz appeals from his convictions in the
Montgomery County Court of Common Pleas after he pleaded guilty to four counts of
pandering sexually oriented material involving a minor – two as felonies of the second
degree and two as felonies of the fourth degree – and was sentenced to 8 to 12 years in
prison. He was also classified as a Tier I and Tier II sex offender. For the reasons that
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follow, the judgment of the trial court will be affirmed in part and reversed in part, and the
case will be remanded for resentencing only.
I. Facts and Procedural History
{¶ 2} In early 2019, Moraine police were called to meet with a citizen who had
reportedly found a SD card that contained images of child sexual abuse. During their
investigation, law enforcement discovered more than 300 child sexual abuse videos on
the SD card as well as folders which identified Stutz as its owner.
{¶ 3} Further investigation led officers to additional devices – two cell phones and
an additional SD card – found in a towed car belonging to Stutz. After obtaining a search
warrant for the phones, investigators found hundreds of additional images and videos
depicting child sexual abuse and applications used to download and view them.
{¶ 4} Images and videos were sent to the National Center for Missing and
Exploited Children, which determined that 18 of the images contained known victims from
the United States, Canada, Ecuador, France, Germany, Moldova, and Slovenia. Many of
the images were of children under the age of 13, some as young as five.
{¶ 5} Moraine investigators also spoke with several people associated with Stutz
who all confirmed that they had witnessed him view inappropriate images, and a former
employer confirmed that Stutz had been terminated after he was observed looking at
images at work.
{¶ 6} Stutz was eventually indicted on 18 counts of pandering sexually oriented
material involving a minor, in violation of R.C. 2907.332(A)(1), 35 counts of pandering
sexually oriented material involving a minor, in violation of R.C. 2907.332(A)(5), and one
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count of pandering obscenity involving a minor, in violation of R.C. 2907.321(A)(5). After
negotiations with the State, Stutz agreed to plead guilty to four violations of R.C.
2907.332: Counts I and II, which were felonies of the second degree, and Counts XIX
and XX, which were felonies of the fourth degree. In return, the State agreed to dismiss
the remaining charges. Additionally, the parties agreed to a jointly-recommended
sentence of 5-10 years in prison.
{¶ 7} On June 22, 2022, Stutz appeared for disposition. The trial court sentenced
him to 8 to 12 years on Count I, 8 to 12 years on Count II, 18 months on Count XIX, and
18 months on Count XX. The court then ordered all the sentences to be served
concurrently for a total of 8 to 12 years in prison. The court also classified Stutz as a Tier
I and Tier II sex offender.
{¶ 8} Stutz has filed a timely appeal which raises three assignments of error.
II. Allied Offenses
{¶ 9} In his first assignment of error, Stutz argues that three of his convictions
(Counts I, XIX, and XX) should have merged because they constituted a single offense
with a single animus and harm.
{¶ 10} Initially, we note that it is the State’s position that Stutz has forfeited all but
plain error because his merger argument was not raised below. “An accused’s failure to
raise the issue of allied offenses of similar import in the trial court forfeits all but plain
error, and a forfeited error is not reversible error unless it affected the outcome of the
proceeding and reversal is necessary to correct a manifest miscarriage of
justice. Accordingly, an accused has the burden to demonstrate a reasonable probability
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that the convictions are for allied offenses of similar import committed with the same
conduct and without a separate animus.” State v. Rogers, 143 Ohio St.3d 385, 2015-
Ohio-2459, 38 N.E.3d 860, ¶ 3. After reviewing the record and Stutz’s arguments as to
whether the challenged counts were allied offenses, we will continue our analysis.
Merger
{¶ 11} When a defendant’s conduct supports multiple offenses, courts conduct an
allied offenses analysis to determine if the charges merge or if the defendant may be
convicted of separate crimes. This process is governed by statute, R.C. 2941.25, and
Ohio Supreme Court jurisprudence from State v. Ruff, 143 Ohio St.3d 114, 2015-Ohio-
995, 34 N.E.3d 892. R.C. 2941.25 provides:
(A) Where the same conduct by [a] 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.
The statute implements the protections of the Double Jeopardy Clauses of the United
States and Ohio Constitutions, which prohibit a second punishment for the same crime.
State v. Frazier, 2d Dist. Clark No. 2021-CA-46, 2021-Ohio-4155, ¶ 18.
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{¶ 12} “As a practical matter, when determining whether offenses are allied
offenses of similar import within the meaning of R.C. 2941.25, courts must ask three
questions when the defendant’s conduct supports multiple offenses: (1) Were the
offenses dissimilar in import or significance? (2) Were they committed separately? and
(3) Were they committed with separate animus or motivation? An affirmative answer to
any of the above will permit separate convictions. The conduct, the animus, and the import
must all be considered.” Ruff at ¶ 31; State v. Davison, 2d Dist. Montgomery No. 28579,
2021-Ohio-728, ¶ 29. Put another way, offenses are of dissimilar import when the
defendant’s actions constitute offenses involving separate victims or if the harm resulting
from each offense is separate and identifiable. Ruff at ¶ 23.
{¶ 13} Here, Stutz was convicted of two counts (Count I and Count II) of pandering
sexually oriented material involving a minor, a violation of R.C. 2907.332(A)(1), felonies
of the second-degree, and two counts (Count XIX and XX) of pandering sexually oriented
material involving a minor, a violation of R.C. 2907.332(A)(5), felonies of the fourth-
degree. And while there were four counts, they were based on only two images. Counts
I, XIX, and XX were based on an image with the identifier
“b98bb541d5f56e36b9f4bb495339b3b6,” while the image in Count II was identified as
“02a7139afba9c4ef9cd935c9115f5007.” The image in Count I was discovered on a
Samsung Galaxy J3 phone and on an SD card found in that phone inside Stutz’s towed
vehicle. The image in Count XIX was found on the SD card in the Samsung Galaxy phone,
and Count XX’s image was located on the Samsung Galaxy phone itself. The image that
was the genesis of Count II was found on the SD card initially discovered in a parking lot
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and then turned in to Moraine police. The same image was also located on the Samsung
Galaxy phone that was in Stutz’s towed vehicle.
{¶ 14} Stutz makes several arguments. His first is that because Counts I, XIX, and
XX were based on the same image, and because, he claims, the image was found in the
same place (the phone), the convictions were based on a singular act and should have
merged. He also reasons that the offenses were not dissimilar in import or significance
and were not committed with separate animus or motivation. We disagree.
{¶ 15} Ohio courts have uniformly held that child pornography offenses are of
dissimilar import when each offense involves a separate file or image. See e.g. State v.
Sanders, 2d Dist. Clark No. 2019-CA-86, 2021-Ohio-2431; State v. Stapleton, 4th Dist.
Pickaway No. 19CA7, 2020-Ohio-4479; State v. Mannarino, 8th Dist. Cuyahoga No.
98727, 2013-Ohio-1795. Because the image in Count II is different than that in Counts I,
XIX, and XX, merger was not available as to that Count.
{¶ 16} To determine whether the other counts should have merged, we must
analyze how the offenses were committed. Stutz was found to have downloaded the
pornographic material from the internet (and likely from another person, based on the
software found on his phone) onto his Samsung Galaxy phone and onto an SD card
where he then viewed and/or stored it. Based on that conduct, we conclude that two
separate acts occurred.
{¶ 17} We have held that a person who views images or videos downloaded from
the internet “possesses” that material in contravention of R.C. 2907.332(A)(5) (no person
shall knowingly solicit, receive, purchase, exchange, possess, or control any material that
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shows a minor participating or engaging in sexual activity, masturbation, or bestiality).
See State v. Hodge, 2d Dist. Miami No. 2013-CA-27, 2014-Ohio-1860, ¶ 10; State v.
Sanders, 2d Dist. Clark No. 2019-CA-86, 2021-Ohio-2431, ¶ 38.
{¶ 18} We have also said that downloading a video or picture creates a copy of the
original and that the act of downloading from the internet onto a device is sufficient
evidence for a trier of fact to conclude that the images were “reproduced” for the purposes
of R.C. 2907.322(A)(1) (no person shall create, record, photograph, film, develop,
reproduce, or publish any material that shows a minor participating or engaging in sexual
activity, masturbation, or bestiality). Id.; State v. Magnone, 2016-Ohio-7100, 72 N.E.3d
212, ¶ 50 (2d Dist.). Accord State v. Butler, 9th Dist. Summit No. 24446, 2009-Ohio-1866,
¶ 24; State v. Kraft, 1st Dist. Hamilton No. C060238, 2007-Ohio-2247, ¶ 92 (the State can
prove the defendant reproduced the material by presenting evidence he downloaded
images from the internet onto a hard drive).
{¶ 19} We conclude, then, that downloading (creating a copy or reproducing) an
image is a separate act – separate conduct – from simply possessing it. Stutz downloaded
the images (violating R.C. 2907.322(A)(1)) and then possessed and viewed them
(violating R.C. 2907.322(A)(5)).
{¶ 20} It is also noteworthy that the image from Count XIX was found in a different
physical location than the one from Count XX. Count XIX’s file was found on the SD card
which was in the phone, and Count XX’s image was on the phone itself. Even though the
SD card was in the phone, the image on the card would exist separately. The image on
the card could be viewed in almost any other device simply by inserting the card into it.
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The varying physical locations of the downloads further leads to the conclusion that there
was separate conduct.
{¶ 21} Because there was different conduct and the crimes were committed
separately, they were not allied offenses, and the convictions properly did not merge.
{¶ 22} The assignment of error is overruled.
III. Guilty Plea
{¶ 23} Stutz contends in his second assignment of error that his guilty plea was
not knowingly, intelligently, and voluntarily made. We disagree.
{¶ 24} To satisfy the requirements of due process, a guilty plea must be made
knowingly, intelligently, and voluntarily, and the record must affirmatively demonstrate as
much. State v. Harris, 2d Dist. Clark No. 2020-CA-29, 2021-Ohio-1431, ¶ 15. For a plea
to be made knowingly, intelligently, and voluntarily, the trial court must follow the
mandates of Crim.R. 11(C). State v. Brown, 2d Dist. Montgomery Nos. 24520, 24705,
2012-Ohio-199, ¶ 13. “[T]he rule ‘ensures an adequate record on review by requiring the
trial court to personally inform the defendant of his rights and the consequences of his
plea and determine if the plea is understandingly and voluntarily made.’ ” State v. Dangler,
162 Ohio St.3d 1, 2020-Ohio-2765, 164 N.E.3d 286, ¶ 11, quoting State v. Stone, 43 Ohio
St.2d 163, 168, 331 N.E.2d 411 (1975).
{¶ 25} Crim.R. 11(C)(2)(c) mandates that the trial court inform the defendant of the
constitutional rights he is waiving like the right to a jury trial, the right to confront witnesses,
the right to compulsory process, the right against self-incrimination, and the right to
require the State to establish guilt beyond a reasonable doubt. State v. Perdue, 2022-
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Ohio-722, 185 N.E.3d 683, ¶ 11 (2d Dist.). Strict compliance with the rule is required. A
failure to strictly comply with this part of the Rule invalidates the plea. Id.{¶ 26} “A trial court must substantially comply with the notification of non-
constitutional rights contained in Crim.R. 11(C)(2)(a) and (b), and a defendant must show
prejudice before a plea will be vacated for failure to substantially comply with these
notifications.” State v. Easter, 2016-Ohio-7798, 74 N.E.3d 760, ¶ 8 (2d Dist.). “Substantial
compliance” means that under the totality of the circumstances the defendant
understands the implications of his plea and the rights he is giving up. State v. Thomas,
2d Dist. Montgomery No. 26907, 2017-Ohio-5501, ¶ 37; State v. Nero, 56 Ohio St.3d 106,
108, 564 N.E.2d 474 (1990). A defendant challenging a guilty plea on non-constitutional
grounds “must show a prejudicial effect” – in other words, “that the plea would otherwise
not have been entered.” Id. at ¶ 38.
{¶ 27} Both parties agree that Stutz was properly informed of his constitutional
rights; but Stutz argues that the trial court erred by not properly advising him of the
maximum potential sentence as required by Crim.R. 11(C)(2)(a). To determine if Stutz
understood the implications of his plea and the rights he was giving up, we must examine
the transcripts.
{¶ 28} There is no question that the plea hearing was messy. The attorneys for
both sides and the trial court struggled to reconcile the jointly-recommended sentence of
5 to 10 years with the indefinite sentence structure of the Reagan Tokes Act; there was
even discussion about changing the terms of the proposed sentence to better fit within
the structure imposed by the law. Eventually, though, Stutz indicated that he understood
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the sentencing range that could effectuate his 5 to 10-year deal and that if the trial court
sentenced him to 8 years (the longest minimum term available for second-degree
felonies), he could possibly serve as much as 12, although the maximum was not up to
the court.
{¶ 29} The colloquy then moved on to the advisement of maximum penalties, and
it is here that the trial court erred. Stutz was informed that the fourth-degree felonies were
not subject to the Reagan Tokes Act, so the maximum sentence for each was 18 months
for a consecutive total of 36 months. The court then incorrectly described the maximum
consecutive total for the second-degree felonies: “Now, I’m not going to do this because
of the plea agreement. But do you understand that if I did sentence you to the maximum
on the felonies of the second degree, being 8 to 12 years, and I ran one consecutive to
that, that could be 16 to * * * 24, okay?” Plea Tr. at 15. The court’s math was incorrect.
{¶ 30} According to R.C. 2929.144(B)(2), when imposing consecutive sentences
on Reagan Tokes qualifying offenses (generally first and second degree felonies not
carrying life-tails, in this case Counts I and II), “the court shall add all of the minimum
terms imposed on the offender * * * for a qualifying felony * * * and the maximum term
shall be equal to the total of those terms so added by the court plus fifty percent of the
longest minimum term * * * for the most serious felony being sentenced.” In other words,
when running qualifying offenses consecutively, the court must add up the minimum
terms of the Reagan Tokes qualifying offenses (in this case 8 years + 8 years = 16 years)
and then add 50% of the minimum for the most serious one being sentenced (50% of 8
years is 4 years). Based on the statute, then, the most Stutz could have been sentenced
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to on the second-degree felonies was 20 years (8 + 8 + 4 = 20), not 24 years as described
by the trial court. The aggregate sentence that Stutz faced if all counts were run
consecutively was a minimum of 19 years (18 months + 18 months + 8 years + 8 years)
and a maximum of 23 years (19 + 4).
{¶ 31} Despite the error in the explanation of the maximum penalty involved, the
record reveals that the trial court otherwise complied with the requirements of Crim.R.
11(C)(2)(a) and (b). Because there was partial compliance, Stutz must establish that the
trial court’s error caused prejudice. State v. Perdue, 2022-Ohio-722, 185 N.E.3d 683, ¶ 12
(2d Dist.). “In this context, prejudice is measured by whether the defendant would have
entered the plea if there had been full compliance[.]” Id.{¶ 32} Even though Stutz was incorrectly advised about the maximum sentences
he was facing, it is reasonable to believe that if Stutz were willing to plead guilty to charges
with a purported maximum prison term of 24 years, he was even likelier to have pleaded
guilty to those with a maximum term of 23 years. Additionally, this was a jointly-
recommended sentence. The parties negotiated a sentence somewhere between 5 and
10 years, and the trial court imposed a sentence in which it will be presumed that Stutz
will be released after 8. Whether he is imprisoned beyond that will be up to him. Because
he cannot show prejudice (and never argues that he would not have pled guilty without
the mistake), the second assignment of error is overruled.
IV. Sex Offender Registry
{¶ 33} In his third assignment of error, Stutz asserts, and the State agrees, that he
was improperly classified as a Tier I sex offender on the fourth-degree felony offenses.
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We concur that this was a mistake.
{¶ 34} R.C. 2950.01(F)(1)(a) clearly states that a person who is convicted of or
pleads guilty to a violation of R.C. 2907.322 is a Tier II sex offender. The statute makes
no distinctions between the level of offenses in R.C. 2907.322 – it simply states that any
violation requires a Tier II classification. So it would not matter if one were convicted of
R.C. 2907.322(A)(1) as a second-degree felony or R.C. 2907.322(A)(5) as a fourth-
degree felony; any conviction under that statute requires in a Tier II classification. Further,
R.C. 2950.01(E), which defines Tier I sex offenses, makes no reference to crimes in
violation of R.C. 2907.322.
{¶ 35} In this case, even though Stutz was told during his plea hearing that he
would be classified as a Tier II sex offender (thus not affecting the voluntariness of his
plea), at the disposition, the trial court notified Stutz that he would be a Tier II sex offender
based on the R.C. 2907.322(A)(1) convictions and a Tier I sex offender on account of the
R.C. 2907.322(A)(5) convictions. Because any violation of R.C. 2907.322 leads to a Tier
II sex offender classification, Stutz’s classification as Tier I was in error and must be
reversed. The third assignment of error is affirmed.
V. Conclusion
{¶ 36} Having concluded that Stutz’s convictions should not have been merged
and that he made his plea in a voluntary manner, the judgment of the trial court will be
affirmed as to those issues. However, because it was an error for Stutz to be classified
as a Tier I sex offender, the court’s judgment on that matter will be reversed and
remanded for the limited purpose of reclassifying him as a Tier II sex offender on the
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fourth-degree felonies in Counts XIX and XX.
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LEWIS, J. and HUFFMAN, J., concur.