State v. Fielding

[Cite as State v. Fielding, 2014-Ohio-3105.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
State of Ohio, :
Plaintiff-Appellee, : No. 13AP-654
(C.P.C. No. 12CR-2800)
v. : No. 13AP-655
(C.P.C. No. 13CR-1564)
Matthew N. Fielding, :
(REGULAR CALENDAR)
Defendant-Appellant. :
D E C I S I O N
Rendered on July 15, 2014
Ron O'Brien, Prosecuting Attorney, and Seth L. Gilbert, for
appellee.
Tyack, Blackmore, Liston & Nigh Co., L.P.A., and
Jonathan T. Tyack, for appellant.
APPEALS from the Franklin County Court of Common Pleas.
BROWN, J.
{¶ 1} In this consolidated appeal, defendant-appellant, Matthew N. Fielding,
appeals the judgment of the Franklin County Court of Common Pleas in case No. 12CR-
2800, in which the court found him guilty, pursuant to a bench trial, of three counts of
pandering sexually oriented matter involving a minor in violation of R.C. 2907.322(A)(5),
felonies of the fourth degree; and the judgment of the Franklin County Court of Common
Pleas in case No. 13CR-1564, in which the court found him guilty, pursuant to a bench
trial, of three counts of pandering sexually oriented matter involving a minor in violation
of R.C. 2907.322(A)(5), felonies of the fourth degree, and one count of pandering sexually
oriented matter involving a minor in violation of R.C. 2907.322(A)(1), a felony of the
second degree.
Nos. 13AP-654 and 13AP-655 2
{¶ 2} Upper Arlington Police Officer John Priest, an investigator and computer
forensics examiner assigned to the multi-jurisdictional Internet Crimes Against Children
("ICAC") Task Force, monitors peer-to-peer file-sharing networks, including Gnutella, for
distribution of child pornography. Peer-to-peer networks such as Gnutella allow users
both to share with other network users files they have created or downloaded and to
access files created or downloaded by other network users. The Gnutella network is
accessible through a number of free file-sharing programs available for download on the
internet, including the Shareaza program.
{¶ 3} On June 22, 2010, Officer Priest was searching for files containing titles
indicative of child pornography via a software program utilized by law enforcement
known as "Roundup." "Roundup" permits the downloading of files from a remote
computer onto an investigative computer accessible only to law enforcement. Officer
Priest identified a particular internet protocol address ("IP address") that contained file
names commonly associated with child pornography.1 Officer Priest established a direct
connection with the computer associated with the IP address, downloaded a video file
from that computer, and confirmed that the file contained child pornography. He
subsequently determined that the computer associated with the IP address belonged to an
AT&T internet customer.
{¶ 4} Based on these findings, Officer Priest prepared an investigative subpoena,
which was signed by a Franklin County Municipal Court judge, to obtain from AT&T the
subscriber information associated with the IP address. In response to the subpoena,
AT&T, via a facsimile transmission, identified appellant as the internet subscriber
assigned to the IP address in question and provided appellant's home address, home
telephone number, and e-mail address. Officer Priest forwarded this information to a
fellow ICAC Task Force member, Detective Jane Junk of the Columbus Division of Police,
who thereafter obtained a search warrant for appellant's residence.
{¶ 5} Detective Junk and Franklin County Sheriff's Office Detective Marcus
Penwell, another member of the ICAC Task Force, executed the search warrant at
1 Officer Priest defined an IP address as "a series of numbers that identify a physical location, much like a
mailbox and a postal address identifies a physical location[,] that's used to direct Internet traffic to a specific
router or house where the router exists." (Apr. 4, 2013 Tr., 25.)
Nos. 13AP-654 and 13AP-655 3
appellant's residence on September 7, 2010. Pursuant to the search, a laptop computer
and an external hard drive were seized from a bedroom office. Subsequent forensic
analysis of both devices revealed multiple files containing child pornography.
{¶ 6} As a result, a Franklin County Grand Jury returned two separate eight-
count indictments against appellant. The first, issued on June 5, 2012 in case No. 12CR-
2800, charged appellant with four counts of pandering sexually oriented matter involving
a minor in violation of R.C. 2907.322(A)(1), second-degree felonies, stemming from four
separate files allegedly transferred onto the external hard drive on August 1, 2007,
July 23, May 21, and April 19, 2008 (Counts 1, 2, 3, and 4), and four counts of pandering
sexually oriented matter involving a minor in violation of R.C. 2907.322(A)(5), fourth-
degree felonies, arising out of the September 7, 2010 discovery of those files on the
external hard drive (Counts 5, 6, 7, and 8). The second indictment, returned on March 21,
2013 in case No. 13CR-1564, charged appellant with four counts of pandering sexually
oriented matter involving a minor in violation of R.C. 2907.322(A)(1), second-degree
felonies, stemming from four separate files allegedly downloaded onto the laptop
computer on June 22, July 8, July 11-12, and June 21, 2010 (Counts 1, 2, 3 and 4), and
four counts of pandering sexually oriented matter involving a minor in violation of R.C.
2907.322(A)(5), fourth-degree felonies, arising out of the September 7, 2010 discovery of
those files on the laptop computer (Counts 5, 6, 7, and 8).2
{¶ 7} Appellant filed a pre-trial motion to suppress under both case numbers.
Appellant argued that law enforcement illegally obtained his subscriber information from
AT&T; accordingly, the subscriber information, as well as all derivative evidence,
including the search of his residence, all evidence seized during the search, and all
statements appellant made during the search, should be suppressed. Following
consolidation of the cases, the matter proceeded for hearing on the motion to suppress.
At the conclusion of the hearing, the trial court denied the motion.
{¶ 8} Appellant waived his right to a jury trial and agreed to have the consolidated
cases tried to the bench. The parties stipulated that all evidence and testimony presented
at the suppression hearing would be incorporated into the trial proceeding. Following the
2At trial, the state, without objection by appellant and with the trial court's authorization, amended the date
of Count 5 of the indictment in case No. 13CR-1564 to June 22, 2010.
Nos. 13AP-654 and 13AP-655 4
bench trial, the court issued decisions finding appellant guilty in case No. 12CR-2800 of
Counts 6, 7, and 8 (pandering sexually oriented matter involving a minor in violation of
R.C. 2907.322(A)(5)), and guilty in case No. 12CR-1654 of Count 1 (pandering sexually
oriented matter involving a minor in violation of R.C. 2907.322(A)(1)) and Counts 5, 6,
and 7 (pandering sexually oriented matter involving a minor in violation of R.C.
2907.322(A)(5). The court acquitted appellant of the other crimes charged in the
indictments.
{¶ 9} Following a July 2013 sentencing hearing, the trial court sentenced
appellant to a seven-day jail term, a five-year term of community control, and ordered
that he register as a Tier II sex offender. Thereafter, the trial court issued a judgment
entry memorializing its decisions and sentencing.
{¶ 10} In a timely appeal, appellant asserts the following three assignments of
error:
I. THE TRIAL COURT ERRED IN OVERRULING
APPELLANT'S MOTION TO SUPPRESS ALL EVIDENCE
ARISING OUT OF OR RESULTING FROM THE
INVESTIGATIVE SUBPOENA SENT TO AT&T BY LAW
ENFORCEMENT FOR THE PURPOSE OF DETERMINIG
APPELLANT'S IDENTITY.
II. THE TRIAL COURT ERRED IN OVERRUING
APPELLANT'S MOTION FOR JUDGMENT OF ACQUITTAL
AS TO ALL COUNTS IN BOTH INDICTMENTS PURSUANT
TO RULE 29 OF THE OHIO RULES OF CRIMINAL
PROCEDURE.
III. APPELLANT'S CONVICTIONS ARE AGAINST THE
MANIFEST WEIGHT OF THE EVIDENCE.
{¶ 11} Appellant argues in his first assignment of error that the trial court erred in
denying his motion to suppress. "Appellate review of a motion to suppress presents a
mixed question of law and fact." State v. Burnside, 100 Ohio St. 3d 152, 2003-Ohio-5372,
¶ 8. In a motion to suppress, the trial court assumes the role of fact finder and thus is in
the best position to resolve factual questions and evaluate witness credibility. Id., citing
State v. Mills, 62 Ohio St. 3d 357, 366 (1992). An appellate court must therefore accept
the trial court's factual findings if they are supported by competent, credible evidence. Id.
Nos. 13AP-654 and 13AP-655 5
at ¶ 8, citing State v. Fanning, 1 Ohio St. 3d 19 (1982). Accepting those facts as true, an
appellate court must then independently determine as a matter of law, without deference
to the trial court's conclusion, whether the facts satisfy the applicable legal standard. Id.
at ¶ 8, citing State v. McNamara, 124 Ohio App. 3d 706 (4th Dist.1997).
{¶ 12} Appellant maintains the trial court erroneously failed to suppress all
evidence stemming from law enforcement's illegal obtainment of his subscriber
information through the investigative subpoena process. Specifically, appellant first
contends that law enforcement obtained his subscriber information in violation of the
Electronic Communications Privacy Act, Section 2701, et. seq., Title 18, U.S.C. ("ECPA"),
which regulates the disclosure of electronic communications and subscriber information.
In pertinent part, 18 U.S.C. 2703(c)(1) provides: "[a] governmental entity may require a
provider of electronic communication service or remote computing service to disclose a
record or other information pertaining to a subscriber to or customer of such service (not
including the contents of communications) only when the governmental entity * * * (A)
obtains a warrant using the procedures described * * * (in the case of a State court, issued
using State warrant procedures) by a court of competent jurisdiction * * * (B) obtains a
court order for such disclosure under subsection (d) of this section [or] (C) has the
consent of the subscriber or customer to such disclosure." Pursuant to subsection (d), a
court order "shall issue only if the governmental entity offers specific and articulable facts
showing that there are reasonable grounds to believe that the contents of a wire or
electronic communication, or the records or other information sought, are relevant and
material to an ongoing criminal investigation." Appellant contends the investigative
subpoena did not qualify as a "court order" under the ECPA.
{¶ 13} Appellant also contends the investigative subpoena was invalid under R.C.
2935.23, which controls the application process for subpoenas used to aid felony
investigations. Pursuant to R.C. 2935.23, witnesses must appear for examination under
oath by the prosecuting attorney, the court or magistrate. In addition, the examination
must be taken in writing and filed with the court or magistrate. Appellant contends the
investigative subpoena was invalid because AT&T failed to appear to testify under oath.
{¶ 14} Appellant argues that he had a reasonable expectation of privacy in his
subscriber information, such that the warrantless acquisition of that information through
Nos. 13AP-654 and 13AP-655 6
the flawed investigative subpoena process utilized by law enforcement violated his rights
under the Fourth Amendment to the United States Constitution and Ohio Constitution,
Article I, Section 14.
{¶ 15} The Fourth Amendment to the United States Constitution, as applied to the
states through the Fourteenth Amendment, and Ohio Constitution, Article I, Section 14,
protects individuals against "unreasonable searches and seizures" by the government and
protects privacy interests where an individual has a reasonable expectation of privacy.
See Smith v. Maryland, 442 U.S. 735, 740 (1979). An expectation of privacy is protected
by the Fourth Amendment where (1) an individual has exhibited a subjective expectation
of privacy, and (2) that expectation of privacy is one that "society is prepared to recognize
as 'reasonable.' " Id., quoting Katz v. United States, 389 U.S. 347, 361 (1967) (Harlan, J.,
concurring). Generally, any evidence obtained in violation of the Fourth Amendment, as
well as any evidence seized subsequent to such violation, must be suppressed as "fruit of
the poisonous tree." Wong Sun v. United States, 371 U.S. 471, 488 (1963).
{¶ 16} Appellant acknowledges that this court and at least one other Ohio appellate
court have considered and rejected the arguments raised in his motion to suppress. In
State v. Thornton, 10th Dist. No. 09AP-108, 2009-Ohio-5125, this court noted the general
principle that "[a]n individual cannot be said to have a reasonable expectation of privacy
in that which he knowingly exposes to the public." Id. at ¶ 11, citing State v. Lopez, 2d
Dist. No. 94-CA-21 (Sept. 28, 1994), citing Katz. Applying that principle, we held that
Thornton had no reasonable expectation of privacy in either computer files he had made
available to the public using file-sharing software or in the IP address associated with his
computer. Id. at ¶ 12, citing United States v. Ganoe, 538 F.3d 1117, 1127 (9th Cir.2008);
United States v. Borowy, 577 F. Supp. 2d 1133, 1136 (D.Nev.2008); United States v.
Forrester, 512 F.3d 500, 510 (9th Cir.2008); United States v. Li, S.D. Cal. No. 07 CR 2915
JM (Mar. 20, 2008). We noted that in such situations, "Fourth Amendment protections
are not implicated because a search does not occur." Thornton at ¶ 12, citing State v.
Keith, 10th Dist. No. 08AP-28, 2008-Ohio-6122, ¶ 16.
{¶ 17} We also addressed Thornton's assertions that his internet provider violated
the ECPA in providing subscriber information to law enforcement without the
subscriber's consent. Id. at ¶ 13-14. We found that, even if the internet provider's
Nos. 13AP-654 and 13AP-655 7
disclosure violated the ECPA, the remedy for such violation "is a civil action for damages,
not suppression." Id. at ¶ 14, citing United States v. Perrine, 518 F.3d 1196, 1202 (10th
Cir.2008); United States v. Beckett, 544 F. Supp. 2d 1346, 1350 (S.D.Fla.2008); United
States v. Sherr, 400 F. Supp. 2d 843, 848 (D.Md.2005); United States v. Kennedy, 81
F. Supp. 2d 1103, 1110 (D.Kan.2000). Thus, we concluded that violation of the ECPA
"would not provide [Thornton] with a basis to suppress the subscriber information."
Thornton at ¶ 14. Finally, we determined that "a customer does not have a reasonable
expectation of privacy in subscriber information given to an internet service provider."
Id., citing Perrine at 1204; Sherr at 848.
{¶ 18} The Twelfth District Court of Appeals has held similarly. In State v.
Hamrick, 12th Dist. No. CA2011-01-002, 2011-Ohio-5357, Hamrick argued that law
enforcement illegally obtained his subscriber information from his internet provider
through use of an investigative subpoena pursuant to R.C. 2935.23. Specifically, Hamrick
argued that the investigative subpoena did not qualify as a "court order" under the ECPA
and that law enforcement failed to comply with R.C. 2935.23 in applying for the
investigative subpoena. Concluding that the remedy of suppression was not available to
Hamrick for violation of the ECPA, the court declined to address whether the investigative
subpoena constituted a valid "court order" under the statute. The court further held that
"[Hamrick's] constitutional rights were not violated when law enforcement obtained his
subscriber information from Time Warner because he has not demonstrated an
objectively reasonable expectation of privacy in this information." Id. at ¶ 18. After
noting the well-settled general principle that " 'a person has no legitimate expectation of
privacy in information he voluntarily turns over to third parties,' " id. at ¶ 18, quoting
Smith at 744, the court stated that "[w]hen appellant entered an agreement with Time
Warner for internet service, he knowingly revealed the subscriber information associated
with his IP address, including his name, address and telephone number." Id. at ¶ 19.
Accordingly, the court determined that "even if law enforcement used an invalid court
order to obtain [Hamrick's] subscriber information, this statutory violation would not
provide [him] with a basis to suppress this information or any evidence stemming
therefrom." Id. at ¶ 20.
Nos. 13AP-654 and 13AP-655 8
{¶ 19} In State v. Lemasters, 12th Dist. No. CA2012-12-028, 2013-Ohio-2969, the
court affirmed its holding that "a subscriber does not have a reasonable expectation of
privacy with respect to his subscriber information, including the IP address associated
with his internet service." Id. at ¶ 9, citing Hamrick at ¶ 19. The court also addressed
Lemasters' contention that law enforcement violated the ECPA by obtaining his
subscriber information from his internet provider via an investigative subpoena rather
than a warrant. Noting Lemasters' argument that the investigative subpoena utilized by
law enforcement was not a court order as contemplated in the ECPA because it did not
follow state guidelines for a proper court order as stated in R.C. 2935.23, the court found,
as it did in Hamrick, that the remedy Lemasters sought for the alleged violation, i.e.,
suppression of the evidence, was unavailable to him. The court further averred that
"[w]hile Lemasters argues that his constitutional rights have been violated so that
suppression is a valid remedy under the ECPA, we have already stated that Lemasters'
Fourth Amendment rights were neither implicated nor violated because he had no
reasonable expectation of privacy in his IP address information or the files he shared." Id.
at ¶ 28. The court concluded, "[h]aving found that Lemasters did not have a reasonable
expectation of privacy, that [law enforcement's] obtaining information from Time Warner
was not a search that implicated the Fourth Amendment, and that suppression is not a
valid remedy contemplated by the ECPA, the trial court did not err in denying Lemasters'
motion to suppress." Id. at ¶ 29.
{¶ 20} Beyond Ohio, "[f]ederal courts have uniformly held that 'subscriber
information provided to an internet provider is not protected by the Fourth Amendment's
privacy expectation' because it is voluntarily conveyed to third parties." United States v.
Christie, 624 F.3d 558, 573 (3d Cir.2010), quoting Perrine at 1204. The court reasoned
that " 'IP addresses are not merely passively conveyed through third party equipment, but
rather are voluntarily turned over in order to direct the third party servers.' " Id. at 574,
quoting Forrester at 510. See also United States v. Suing, 712 F.3d 1209, 1213 (8th
Cir.2013) (defendant who chose to share pornographic files via a peer-to-peer network
" 'had no expectation of privacy in [the] government's acquisition of his subscriber
information, including his IP address and name from third-party service providers' "). Id.,
quoting United States v. Stults, 575 F.3d 834, 842 (8th Cir.2009); Guest v. Leis, 255 F.3d
Nos. 13AP-654 and 13AP-655 9
325, 336 (6th Cir.2001) (no Fourth Amendment privacy interest in subscriber
information voluntarily communicated to systems operators); United States v. Sawyer,
786 F. Supp. 2d 1352, 1355 (N.D.Ohio 2011) (no Fourth Amendment privacy interest in
information made available on a public peer-to-peer filing sharing program, since the
individual's expectation of privacy in that shared information is not objectively
reasonable).
{¶ 21} Appellant contends the foregoing jurisprudence must be re-examined in
light of the United States Supreme Court's decision in United States v. Jones, 132 S. Ct.
945 (2012). There, the Supreme Court considered whether the warrantless installation of
a GPS tracking device on the defendant's vehicle violated his Fourth Amendment rights.
Id. at 948. The Court found that the defendant's "Fourth Amendment rights do not rise or
fall with the Katz [reasonable-expectation-of-privacy] formulation." Id. at 947. Rather,
the Court found that the defendant's vehicle was an "effect" and that the warrantless
physical trespass of that "effect" to obtain information constituted an unreasonable search
under the Fourth Amendment. Id. at 948. Thus, the Court made clear that the Fourth
Amendment is implicated where the "[g]overnment physically occupie[s] private property
for the purpose of obtaining information." Id. at 949. However, the Court also confirmed
that "[s]ituations involving merely the transmission of electronic signals without trespass
would remain subject to [the] Katz analysis." (Emphasis omitted.) Id. at 953. That is, the
Court stated that the "Katz reasonable-expectation-of-privacy test has been added to, not
substituted for, the common-law trespassory test." Id. at 952. Relying primarily on this
language and the concurring opinions of Justice Sotomayor and Justice Alito, appellant
contends that Jones affords him a greater expectation of privacy in the subscriber
information he provided to AT&T than that afforded by pre-Jones judicial precedent.
{¶ 22} Courts addressing this same argument have rejected it. As the court
explained in Lemasters:
[T]he Jones holding does not stand for the proposition that a
person has a reasonable expectation of privacy in information
that he freely shares with third parties or to files that are
shared openly with others through a file-sharing program.
While Lemasters spends a great amount of time in his brief
quoting and referencing the concurring opinions in Jones that
suggest that the Fourth Amendment should be stretched to
Nos. 13AP-654 and 13AP-655 10
include other privacy rights, we are bound only by the
majority opinion of the court, rather than questions raised
and suggestions made within the dicta of concurring opinions.
Therefore, the rule of law from Jones that governs Fourth
Amendment jurisprudence is that the placement of a GPS on
one's car is trespassory in nature and that such placement
requires a warrant.
The trespassory nature of installing a GPS is clearly absent
from the current facts of this case. Just as Hamrick freely
shared his information with Time Warner, Lemasters did the
same thing when he registered his information in order to
make use of the Time Warner internet service. Lemasters also
opened his filed for public sharing and exhibited absolutely no
expectation of privacy in them. Lemasters did nothing to
make his information private or to protect any expectation of
privacy, and [law enforcement] did not perform any trespass
in order to obtain from Time Warner the information that
Lemasters openly and freely shared regarding his IP address.
We decline to extend Jones in the manner advocated by
Lemasters.
Id. at ¶ 13-14.
{¶ 23} In Lemasters, the court noted that its refusal to extend Jones to hold that a
person has a reasonable expectation of privacy in information freely shared with third
parties or in files shared openly with others through a file-sharing program was in accord
with federal jurisprudence. The court particularly cited United States v. Nolan, E.D.Mo.
No. 1:11 CR 82 CEJ (Mar. 6, 2012) (stating defendant's reliance on Jones was
"misdirected"); United States v. Brooks, E.D.N.Y. No. 12-CR-166 (RRM) (Dec. 17, 2012)
(finding defendant's attempt to apply Jones to be misplaced); United States v. Conner,
6th Cir. No. 12-3210 (Apr. 11, 2013) (court never discussed law enforcement's use of file-
sharing program or obtaining IP address information as the trespassory invasion or
physical intrusion contemplated by Jones); and United States v. Stanley, W.D.Pa. No. 11-
272 (Nov. 14, 2012) (despite Jones, the court did not analyze the police investigation of
the defendant's IP address as a trespassory search invoking the defendant's Fourth
Amendment rights). The Lemasters court concluded that "[w]ell-settled legal
pronouncements regarding reasonable expectation of privacy as it relates to file-sharing
Nos. 13AP-654 and 13AP-655 11
and IP address information have not changed in the wake of Jones, and this court will not
diverge from established precedent to hold otherwise." Id. at ¶ 22.
{¶ 24} Courts in addition to Lemasters and those referenced therein have refused
to extend Jones in the manner urged by appellant. See, e.g., Commonwealth of Virginia
v. Do, 86 Va.Cir. 483 (June 4, 2013) (rejecting Do's reliance on Jones because no physical
intrusion occurs in the use of a search tool to monitor a peer-to-peer network and identify
an IP address); United States v. Dennis, N.D.Ga. No. 3:13-cr-10-TCB (May 12, 2014)
("[t]he government did not use a tracking device, such as at issue in Jones; instead, it
merely obtained information publicly available on shared files via a software program that
connected with defendant's computer on which defendant had installed a file-sharing
program. Thus, there was no Fourth Amendment violation tied to common law notions of
trespass in this case."); and United States v. Brashear, M.D.Pa. No. 4:11-CR-0062
(Nov. 18, 2013) ("[s]everal courts have rejected the application of Jones to the
investigation of file sharing programs [and] [t]his court concurs with the rationale of
these decisions. The investigation of a file sharing program does not involve any physical
trespass onto a constitutionally protected area.").
{¶ 25} As in the foregoing cases, and in contrast to Jones, there was no physical
trespass onto a constitutionally protected area in the present case. Rather, Officer Priest
obtained information publicly available on shared files via a software program that
connected with the computer on which appellant had installed a file-sharing program.
We concur in the rationale of the above-noted authorities and thus conclude that
appellant's Fourth Amendment rights were not implicated by Officer Priest's obtaining
appellant's subscriber information from AT&T based upon appellant's IP address.
Accordingly, the trial court did not err by denying appellant's motion to suppress.
Appellant's first assignment of error is overruled.
{¶ 26} We address appellant's second and third assignments of error together. In
them, appellant argues that his convictions are not supported by sufficient evidence and
are against the manifest weight of the evidence.
{¶ 27} Sufficiency of the evidence is a legal standard that tests whether the
evidence introduced at trial is legally adequate to support a verdict. State v. Thompkins,
78 Ohio St. 3d 380, 386 (1997). Whether the evidence is legally sufficient to support a
Nos. 13AP-654 and 13AP-655 12
verdict is a question of law. Id. In determining whether the evidence is legally sufficient
to support a conviction, " '[t]he relevant inquiry is whether, after viewing the evidence in a
light most favorable to the prosecution, any rational trier of fact could have found the
essential elements of the crime proven beyond a reasonable doubt.' " State v. Robinson,
124 Ohio St. 3d 76, 2009-Ohio-5937, ¶ 34, quoting State v. Jenks, 61 Ohio St. 3d 259
(1991), paragraph two of the syllabus. A verdict will not be disturbed unless, after viewing
the evidence in a light most favorable to the prosecution, it is apparent that reasonable
minds could not reach the conclusion reached by the trier of fact. State v. Treesh, 90 Ohio
St.3d 460, 484 (2001).
{¶ 28} In a sufficiency inquiry, appellate courts do not assess whether the state's
evidence is to be believed, but whether, if believed, the evidence admitted at trial supports
the conviction. State v. Yarbourgh, 95 Ohio St. 3d 227, 2002-Ohio-2126, ¶ 79 (evaluation
of witness credibility not proper on review for sufficiency of evidence); State v. Bankston,
10th Dist. No. 08AP-668, 2009-Ohio-754, ¶ 4 (noting that "in a sufficiency of the evidence
review, an appellate court does not engage in a determination of witness credibility;
rather, it essentially assumes the state's witnesses testified truthfully and determines if
that testimony satisfies each element of the crime").
{¶ 29} In contrast, the weight of the evidence concerns the inclination of the
greater amount of credible evidence offered to support one side of the issue rather than
the other. Thompkins at 387. Although there may be sufficient evidence to support a
judgment, a court may nevertheless conclude that a judgment is against the manifest
weight of the evidence. Id.
{¶ 30} When presented with a challenge to the manifest weight of the evidence, an
appellate court may not merely substitute its view for that of the trier of fact, but must
review the entire record, weigh the evidence and all reasonable inferences, consider the
credibility of witnesses and determine whether in resolving conflicts in the evidence the
trier of fact clearly lost its way and created such a manifest miscarriage of justice that the
conviction must be reversed and a new trial ordered. Id. An appellate court should
reserve reversal of a conviction as being against the manifest weight of the evidence for
only the most " 'exceptional case in which the evidence weighs heavily against the
Nos. 13AP-654 and 13AP-655 13
conviction.' " Thompkins at 387, quoting State v. Martin, 20 Ohio App. 3d 172, 175 (1st
Dist.1983).
{¶ 31} In addressing a manifest weight of the evidence argument, an appellate
court may consider the credibility of the witnesses. State v. Cattledge, 10th Dist. No.
10AP-105, 2010-Ohio-4953, ¶ 6. However, in conducting such review, the court is guided
by the presumption that the jury or the trial court in a bench trial " 'is best able to view the
witnesses and observe their demeanor, gestures and voice inflections, and use these
observations in weighing the credibility of the proffered testimony.' " Id., quoting Seasons
Coal Co. v. Cleveland, 10 Ohio St. 3d 77, 80 (1984). Thus, a reviewing court must defer to
the factual findings of the jury or judge in a bench trial regarding the credibility of the
witnesses. State v. DeHass, 10 Ohio St. 2d 230 (1967), paragraph one of the syllabus.
{¶ 32} The evidence presented at the bench trial (which, as noted, included by
stipulation the evidence presented at the suppression hearing), is as follows. Officer
Priest testified both as a factual witness and as an expert in computer forensics. Officer
Priest provided an overview of the peer-to-peer file-sharing process in the context of child
pornography cases. To that end, he averred that the Shareaza program permits a user to
enter search terms as a means of locating files available for download from a file-sharing
network. According to Officer Priest, a user searching for child pornography typically
enters search terms such as "pedo," "pthc" or "kdv." (Apr. 4, 2013 Tr., 87.)3 When a user
locates a file containing the requested search terms, the user may initiate a download of
the file by right-clicking or double-clicking the file; a user may also simultaneously
download a number of files by highlighting the requested files and right-clicking or
double-clicking the highlighted files. The time involved in the downloading process varies
depending upon the size of the requested file, the availability of the file for download, and
the number of individuals requesting download of the shared file.
{¶ 33} The downloading process creates a duplicate of the file on the user's
computer. In essence, "a new copy of [the downloaded file] exists in the world on [the
user's] computer that wasn't there before." (Apr. 4, 2013 Tr., 66.) The location of the
3 Officer Priest testified that "pedo" is an abbreviation of "pedophile," and "pthc" is an abbreviation for
"preteen hardcore." Although he was uncertain of the exact meaning of "kdv," he averred that "it typically is
child pornography of a young boy nature." (Apr. 4 2013 Tr., 87.)
Nos. 13AP-654 and 13AP-655 14
downloaded file on the user's computer depends upon how the user sets up "preferences"
for downloading. (Apr. 4, 2013 Tr., 66.) The "default" setting in the Shareaza program
automatically places downloaded files into a shared location. (Apr. 4, 2013 Tr., 66, 118.)
Users may affirmatively override the default setting to prevent files from downloading
into a shared location.
{¶ 34} During the downloading process, the files are available for play in the
Shareaza browser through use of a "preview button." (Apr. 4, 2013 Tr., 118.) The
"preview button" makes an exact copy of a file that is being downloaded at a specific point
in time and permits access to the incomplete file in a temporary download location for the
purpose of viewing the contents of the file. Once the incomplete file is accessed, the user
then determines whether to continue the downloading process or delete the partially
downloaded file.
{¶ 35} As to the facts specific to the present case, Officer Priest testified that, on
June 22, 2010, he determined that a user at a particular IP address (which was
subsequently determined to be registered to appellant), using the Shareaza program had
downloaded a number of files with titles commonly associated with child pornography.4
Pursuant to the default setting in the Shareaza program utilized by appellant, these files
were downloaded into a shared location "that [was] being advertised out on the Internet
to anybody and everybody running the same protocol * * * Shareaza, making these files
available for anybody that wanted a copy of them." (Apr. 4, 2013 Tr., 27.) Utilizing the
"Roundup" software, Officer Priest, in a "Single Source download," downloaded one of the
files from appellant's computer to his investigative computer. (Apr. 4, 2013 Tr., 29.)
Officer Priest described a "Single Source download" as one that downloads a file from
another computer in a manner that assures the person downloading the file that no other
individuals are contributing to the download and that it all derives from the suspect IP
address. After viewing the downloaded file, Officer Priest confirmed that it contained
child pornography.
4 Officer Priest testified as to the precise titles of a number of these files. Because the precise titles are, to say
the least, vulgar, we choose not to replicate them here. We note, however, that many of the titles contain
some combination of the terms "pthc" and "pedo"; in addition, many contain references to underage
participants.
Nos. 13AP-654 and 13AP-655 15
{¶ 36} After the laptop and external hard drive were retrieved from appellant's
home, Officer Priest, using specialized software, conducted two separate forensic
examinations of the files and other artifacts contained on those two devices and thereafter
prepared reports of his findings. This forensic analysis revealed that the Shareaza
program on appellant's laptop utilized the default setting, which automatically placed
downloaded files into a shared location. The recovered artifacts from the Shareaza
program on the laptop included search terms indicative of child pornography, including
"gay pedo," "gay-kdv," "gay boy," "gay young," and "pedo boy." (Apr. 4, 2013 Tr., 115.)
For testing purposes, Officer Priest entered the "gay pedo" and "gay-kdv" search terms in
the Shareaza program; he retrieved files with titles indicative of child pornography in
approximately 90 percent of the testing. According to Officer Priest's forensic reports, a
total of 41 videos containing child pornography were discovered on the laptop and
external hard drive.
{¶ 37} Officer Priest identified the files that ultimately formed the basis of the
indictment in case No. 12CR-2800 as "bros.avi" (Counts 1 and 5), "deep.mpg" (Counts 2
and 6), "friends4.mpg" (Counts 3 and 7), and "friends6.mpg" (Counts 4 and 8). All four
files were recovered from a deleted status on the external hard drive. Officer Priest
determined that the "bros.avi" file had been viewed for a period of seven to ten seconds
prior to being deleted; however, he could not determine whether the other three files had
been viewed prior to being deleted.
{¶ 38} Officer Priest identified the files that ultimately formed the basis of the
indictment in case No. 12CR-1564 as "p-101 boy orgy pthc pedo kdv" ("p-101 boy orgy")
(Counts 1 and 5), "pedo gay three preteen boys on couch" ("three preteen boys") (Counts 2
and 6), "5 yo sucks * * *" ("5 yo sucks") (Counts 3 and 7), and "$rpcoudh.avi" (Counts 4
and 8).5 The "p-101 boy orgy" file was the file downloaded by Officer Priest from
appellant's IP address on June 22, 2010. According to Officer Priest, "[a] complete copy
[of the file] had to exist in a shared location at that IP address at the time of the [June 22,
2010] investigation." (Apr. 4, 2013 Tr. 76.) The "three preteen boys" and "5 yo sucks"
files were recovered from the shadow volume of the Windows operating system on
5 The full titles of three of the files are offensive. For this reason, we have used abbreviated versions of those
titles.
Nos. 13AP-654 and 13AP-655 16
appellant's laptop. Officer Priest described the shadow volume as "a process in which
Windows maintains a copy of files to make the recovery of accidentally deleted or lost files
easy. * * * The shadow is an automated process. It takes it at undisclosed intervals when
there's been changes to the system. In order for something to be in the shadow, it had to
exist on the machine at that specific time in a user-obtainable area." (Apr. 5, 2013 Tr., 47-
48.) He further averred that files in "[t]he shadow copy, although not immediately visible,
[are] still in an active directory. They are not deleted; they are not overwritten; they are
fully accessible through restore, backup, or other utilities." (Apr. 5, 2013 Tr., 112.) The
"$rpcoudh.avi" file was recovered from the shadow volume in the laptop's recycle bin.
According to Officer Priest, deleted files reside temporarily in the recycle bin; the recycle
bin is maintained by the Windows operating system to allow users to recover accidentally
deleted files.
{¶ 39} Although Officer Priest acknowledged that his forensic analysis did not
establish the precise method by which the files were downloaded to the laptop, he was
able to determine that appellant downloaded the files individually and not as part of a
group download. He further averred that, although he could not determine exactly how
the files found on the external hard drive had been transferred to that location, he could
determine that it was through "user-attributed action." (Apr. 5, 2013 Tr., 73.) He also
acknowledged that the "p-101 boy orgy" file did not exist in any form on either the laptop
or the external hard drive at the time he conducted his forensic examination.
{¶ 40} Officer Priest conceded that terms utilized in a Shareaza program search
could retrieve files with titles not necessarily indicative of file contents and that file titles
may include terms indicative of child pornography that actually contain only adult
pornography. However, he also testified that files with titles indicative of child
pornography more often than not contain child pornography rather than adult
pornography. He conceded that he could not definitively determine when searches were
run or if any of the files at issue were directly related to the search terms found in the
Shareaza program. In addition, he acknowledged that the downloading of a file to the
shared location, the existence of a file in the shadow volume or recycle bin or the transfer
of a file to an external hard drive, does not necessarily mean that the user viewed the file.
Nos. 13AP-654 and 13AP-655 17
He also conceded that the "preview button" had not been utilized with regard to any of the
files at issue.
{¶ 41} Although Officer Priest acknowledged the possibility that a user could
inadvertently download child pornography while searching for adult pornography, he did
not think that had happened in the present case, as his investigation revealed a pattern of
child pornography downloads from appellant's IP address over a two-year period.
{¶ 42} The state also presented the testimony of Detective Junk and Detective
Penwell, both of whom interviewed appellant during the September 7, 2010 search of
appellant's residence. The audiotape of that interview was played at trial. During the
interview, appellant averred that he was a widower and lived alone with his school age
daughter. He acknowledged that he owned both a laptop and an external hard drive and
had internet access through AT&T. When apprised that the officers were investigating
allegations of child pornography on his computer, appellant acknowledged that he
sometimes viewed gay adult pornography, but that child pornography was "not my thing."
(Apr. 5, 2013 Tr., 156; State's exhibit No. 5.) He also admitted that he had downloaded
the Shareaza program onto his laptop and accessed it by utilizing search terms such as
"young" because he was drawn to "younger men." (Apr. 5, 2013 Tr., 167, 190; State's
exhibit No. 5.) As a result, he sometimes came across images he clearly identified as
involving teenagers; however, he immediately deleted those images.
{¶ 43} When asked if he had any reason to believe that those types of images would
be found on his laptop or external hard drive, appellant initially replied, "I certainly hope
there's nothing on that machine." (Apr. 5, 2013 Tr., 172; State's exhibit No. 5.) Later in
the interview he stated, "I know there's probably something on that machine" because
"you run into stuff." (Apr. 5, 2013 Tr., 173-74.) He further stated that he worked as a
forensics "IT person" and realized that "every time you do anything, there's a trail" and
that you can "never wipe anything completely clean." (Apr. 5, 2013 Tr., 177-78.)
Regarding the use of search terms in the Shareaza program, appellant averred that,
although he did not know what the abbreviation "pthc" meant, he acknowledged that
"kdv" often brought up videos containing child pornography. (Apr. 5, 2013 Tr., 183-84.)
Although he conceded that files in the shared location on his laptop could be accessed by
others, he stated he did not intentionally share files with others. When informed that law
Nos. 13AP-654 and 13AP-655 18
enforcement connected with his computer and downloaded child pornography through
the Shareaza program, appellant averred, "I never thought of that. * * * Shame on me."
(Apr. 5, 2013 Tr., 188.)
{¶ 44} C. Matthew Curtin of Interhack, a computer forensics consulting firm,
testified as an expert witness on behalf of appellant. Mr. Curtin averred that he analyzed
several items related to the case, including Officer Priest's computer forensics reports,
additional documentation provided by Officer Priest, and the report of an image of the
external hard drive that formed the basis of the 2012 indictment. Mr. Curtin prepared his
own computer forensic reports based upon his analysis of the foregoing information.
{¶ 45} Mr. Curtin testified that the Shareaza program prohibits a user from
viewing the content of a file prior to downloading it. A user may only view the content of a
file after it has been downloaded into the shared location, and viewing a file requires some
type of affirmative action by the user. He acknowledged, however, that a user necessarily
observes the title of a file before initiating a download of the file. He further averred that
when using search terms in a peer-to-peer filing sharing system, only the names of files
are searched; the content of the files are not searched. He acknowledged that once the
Shareaza program downloads a file into the shared location, that file is available for
download by others. He further testified that a user need not view a file before
downloading, transferring, backing it up or deleting it.
{¶ 46} As to the specifics of the instant case, Mr. Curtin testified that, because each
of the four files that became the subject of the 2012 indictment had been deleted from the
external hard drive, appellant would have had to utilize special software to recover them
from their deleted status and gain access to them. As to the files pertinent to the 2013
indictment, Mr. Curtin averred that the fact that the files existed on appellant's laptop in
the shared location, the shadow volume or the recycle bin did not necessarily mean that
appellant had accessed or viewed those files. He acknowledged, however, that for a file to
be located in the shadow volume or the recycle bin of a computer necessarily meant that
the file existed on the computer at one time in the same condition it later existed in the
shadow volume or the recycle bin. He also acknowledged that there was no definitive way
to determine whether appellant actually viewed the files he downloaded prior to deleting
them.
Nos. 13AP-654 and 13AP-655 19
{¶ 47} Mr. Curtin ultimately opined that the forensic computer data was consistent
with appellant's explanation that he inadvertently downloaded all the files containing
child pornography onto his laptop and immediately deleted them upon discovering the
nature of the file contents. He acknowledged on cross-examination, however, that the
forensic computer data was also consistent with purposeful downloads of files containing
child pornography followed by deletion of those files.
{¶ 48} In its judgment entry in case No. 12CR-2800, the trial court averred that it
found appellant guilty of Counts 6, 7, and 8, all felonies of the fourth degree pursuant to
R.C. 2907.322(A)(5), and specifically that appellant "knowingly 'possessed or controlled'
material with knowledge of the character of the material or performance as child
pornography." As noted, Counts 6, 7, and 8 corresponded to the "deep.mpg,"
"friends4.mpg," and "friends6.mpg" files, respectively. In its judgment entry in case No.
12CR-1564, the trial court averred that it found appellant guilty of Count 1, a felony of the
second degree pursuant to R.C. 2907.322(A)(1), and specifically that appellant "knowingly
'publish[ed]' material with knowledge of the character of the matter as child
pornography," and guilty of Counts 5, 6, and 7, felonies of the fourth degree pursuant to
R.C. 2907.322(A)(5), and specifically that appellant "knowingly 'possessed or controlled'
material with knowledge of its character as child pornography." As noted, Counts 1 and 5
corresponded to the "p-101 boy orgy" file; Counts 6 and 7 corresponded to the "three
preteen boys" and "5 yo sucks" files, respectively.
{¶ 49} As pertinent here, R.C. 2907.322(A) provides:
No person, with knowledge of the character of the material or
performance involved, shall do any of the following:
(1) * * * [P]ublish any material that shows a minor
participating or engaging in sexual activity, masturbation, or
bestiality;
***
(5) Knowingly * * * possess, or control any material that
shows a minor participating or engaging in sexual activity,
masturbation, or bestiality.
Nos. 13AP-654 and 13AP-655 20
{¶ 50} There is no dispute that the video files found on appellant's laptop and
external hard drive depicted minors participating or engaging in sexual activity,
masturbation or bestiality. Appellant contends the evidence presented by the state is
insufficient to prove beyond a reasonable doubt that he had "knowledge of the character
of the material" underlying his convictions. Appellant further contends that his
convictions are against the manifest weight of the evidence, as they are based upon the
impermissible stacking of inferences leading to speculative findings unsupported by the
testimonial and forensic evidence.
{¶ 51} "A person acts knowingly, regardless of his purpose, when he is aware that
his conduct will probably cause a certain result or will probably be of a certain nature. A
person has knowledge of circumstances when he is aware that such circumstances
probably exist." R.C. 2901.22(B). "Whether a person acts knowingly can only be
determined, absent a defendant's admission, from all the surrounding facts and
circumstances, including the doing of the act itself." State v. Conant, 5th Dist. No.
13CA55, 2014-Ohio-1739, ¶ 27, citing State v. Huff, 145 Ohio App. 3d 555, 563 (1st
Dist.2001). Accordingly, " '[t]he test for whether a defendant acted knowingly is a
subjective one, but it is decided on objective criteria.' " Id., citing State v. McDaniel, 2d
Dist. No. 16221 (May 1, 1998).
{¶ 52} Here, the state relied on circumstantial evidence to prove its case.
" 'Circumstantial evidence and direct evidence inherently possess the same probative
value.' " Id., quoting Jenks at paragraph one of the syllabus. "Furthermore, '[s]ince
circumstantial evidence and direct evidence are indistinguishable so far as the [fact
finder's] fact-finding function is concerned, all that is required of the [fact finder] is that
[it] weigh all of the evidence, direct and circumstantial, against the standard of proof
beyond a reasonable doubt.' " Id., quoting Jenks at 272.
{¶ 53} Construing the evidence in a light most favorable to the state, a rational trier
of fact could conclude that appellant knew that the video files found on his computers
contained child pornography. Appellant admitted that he downloaded the Shareaza
program to view pornography and that the Shareaza program allowed him to enter search
terms as a means of locating pornography files available for download. The forensic
examination of appellant's computers revealed that he entered search terms including
Nos. 13AP-654 and 13AP-655 21
"pedo" and "kdv." Officer Priest testified that these search terms are commonly used in
attempts to locate child pornography. When interviewed during the search of his
residence, appellant acknowledged that the search term "kdv" often brought up videos
containing child pornography. Appellant's use of these search terms constitutes evidence
of appellant's knowledge of the content of the files found on his computers and
undermines his claim that his possession of the files was accidental.
{¶ 54} Contrary to appellant's assertion, whether the specific search terms utilized
by appellant led to the downloading of the particular files at issue is irrelevant. The fact
remains that appellant input search terms indicative of child pornography, and child
pornography was discovered on appellant's computers. Indeed, with respect to case No.
12CR-1564, the titles of three of the files at issue contain the search terms entered by
appellant, proving that he knew the character of their contents.
{¶ 55} Appellant's statements made during his interview with police also suggest
that he knew his computer files contained child pornography. As noted, when asked that
question, he first stated, he "hope[d]" not. He later admitted "there's probably
something" on the computers. He also stated that he realized computer activity leaves "a
trail" and that computer activity could never be completely erased. Appellant further
contends that the state's failure to establish that he ever viewed the video files amounts to
a failure to establish that he was aware that they contained child pornography. Appellant
cites no authority in support of this argument, and we note that neither R.C.
2907.322(A)(1) nor (5) require that the offender actually view the material.
{¶ 56} Moreover, contrary to appellant's assertion, the fact that the files were
recovered from the deleted status, the shadow volume or in the recycle bin of appellant's
computers does not mean that the state failed to prove that he was unaware of the
contents of those files. Officer Priest testified that individuals often download child
pornography, delete the files out of guilt or fear of being discovered, and re-download
them at a later date. In addition, both Officer Priest and Mr. Curtin averred that files
recovered from the deleted status, the shadow volume or the recycle bin had to have at
one point existed in a user obtainable area.
{¶ 57} Appellant's assertion that he accidentally downloaded the files without
knowing that they contained child pornography is undermined by Officer Priest's
Nos. 13AP-654 and 13AP-655 22
testimony. Although Officer Priest acknowledged that a user could inadvertently
download child pornography while searching for adult pornography, he believed that such
was not the case here, as his investigation revealed a pattern of child pornography
downloads from appellant's IP address over a two-year period. He further averred that
his forensic analysis of appellant's computers revealed 41 videos containing child
pornography. It is difficult to believe that appellant could accidentally download that
many videos. In addition, Mr. Curtin conceded that his forensic computer examination
was consistent with purposeful downloads of files containing child pornography followed
by deletion of those files.
{¶ 58} With regard to his conviction on Count 1 in case No. 12CR-1564 (the
"publishing" count), appellant maintains that someone else may have used his IP address
to make the "p-101 boy orgy" file available for download through Shareaza. However,
nothing in the record before us indicates that anyone other than appellant downloaded
this file. No one else was shown to have had access to appellant's IP address, especially at
the time this file was downloaded.
{¶ 59} As to appellant's contention that his convictions are against the manifest
weight of the evidence because they are based upon the impermissible stacking of
inferences, we note that where "the state relies on circumstantial evidence to prove an
essential element of an offense, it is not necessary for 'such evidence to be irreconcilable
with any reasonable theory of innocence in order to support a conviction.' " Conant at
¶ 31, quoting Jenks at paragraph one of the syllabus. "While inferences cannot be based
on inferences, a number of conclusions can result from the same set of facts." Id., citing
State v. Lott, 51 Ohio St. 3d 160, 168 (1990). "Moreover, a series of facts and
circumstances can be employed by a [fact finder] as the basis for its ultimate conclusions
in a case." Id., citing Lott at 168.
{¶ 60} Ultimately, "the reviewing court must determine whether the appellant or
the appellee provided the more believable evidence, but must not completely substitute its
judgment for that of the original trier of fact 'unless it is patently apparent that the
factfinder lost its way.' " State v. Pallai, 7th Dist. No. 07 MA 198, 2008-Ohio-6635, ¶ 31,
quoting State v. Woullard, 158 Ohio App. 3d 31, 2004-Ohio-3395, ¶ 81 (2d Dist.2004). In
other words, "[w]hen there exist two fairly reasonable views of the evidence or two
Nos. 13AP-654 and 13AP-655 23
conflicting versions of events, neither of which is unbelievable, it is not our province to
choose which one we believe." State v. Dyke, 7th Dist. No. 99 CA 149, 2002-Ohio-1152,
citing State v. Gore, 131 Ohio App. 3d 197, 201 (7th Dist.1999). The weight to be given the
evidence and the credibility of the witnesses are issues for the trier of fact. DeHass at
paragraph one of the syllabus.
{¶ 61} The court as the trier of fact was free to accept or reject any and all of the
evidence offered by the parties and assess the witnesses' credibility. " '[W]hile the [fact
finder] may take note of the inconsistencies and resolve or discount them accordingly,
* * * such inconsistencies do not render [a] defendant's conviction against the manifest
weight or sufficiency of the evidence.' " State v. Craig, 10th Dist. No. 99AP-739 (Mar. 23,
2000), quoting State v. Nivens, 10th Dist. No. 95APA09-1236 (May 28, 1996). Indeed,
the fact finder may believe all, part or none of a witness's testimony. State v. Raver, 10th
Dist. No. 02AP-604, 2003-Ohio-958, ¶ 21, citing State v. Antill, 176 Ohio St. 61, 67 (1964).
Although the evidence in the present case may have been circumstantial, we reiterate that
circumstantial evidence has the same probative value as direct evidence. Jenks.
{¶ 62} Upon careful review of the entire record in this matter, we find appellant's
convictions are based upon sufficient evidence and are not against the manifest weight of
the evidence. Accordingly, appellant's second and third assignments of error are
overruled.
{¶ 63} Having overruled all three of appellant's assignments of error, we affirm the
judgments of the Franklin County Court of Common Pleas.
Judgments affirmed.
SADLER, P.J., and DORRIAN, J., concur.
____________________