State v. Boyd

[Cite as State v. Boyd, 2022-Ohio-3523.]
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
Criminal Appeal from the
Court of Common Pleas of Mahoning County, Ohio
Case No. 2017 CR 1381
BEFORE:
Carol Ann Robb, Gene Donofrio, Cheryl L. Waite, Judges.
JUDGMENT:
Affirmed.
Atty. Paul J. Gains, Mahoning County Prosecutor, Atty. Ralph M. Rivera, Assistant Chief,
Criminal Division, Office of the Mahoning County Prosecutor, 21 West Boardman Street,
6th Floor, Youngstown, Ohio 44503 for Plaintiff-Appellee and
Atty. Edward F. Borkowski, Jr. P.O. Box 609151, Cleveland, Ohio 44109 for Defendant-
Appellant.
Dated: September 30, 2022
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Robb, J.
{¶1} Defendant-Appellant Robert Boyd appeals after being convicted of rape and
other offenses in the Mahoning County Common Pleas Court. He sets forth arguments
related to the denial of his suppression motion, sufficiency of the evidence, weight of the
evidence, ineffective assistance of counsel, and sentencing. For the following reasons,
the trial court’s judgment is upheld and Appellant’s convictions are affirmed.
STATEMENT OF THE CASE
{¶2} Appellant was indicted on two counts of rape for purposefully compelling
two victims to submit to sexual conduct by force or threat of force. See R.C.
2907.02(A)(2),(B) (first-degree felonies). Count one related to anal sex with victim A, who
was 17 years old at the time of the March 31, 2017 incident. Count two related to anal
sex with victim B, who was 14 years old at the time of an April 17, 2016 incident. As to
victim B, Appellant was also charged with gross sexual imposition for touching this boy’s
penis by force or threat of force. See R.C. 2907.05(A)(1),(C) (fourth-degree felony).
{¶3} Three counts of disseminating matter harmful to juveniles were brought
based on Appellant’s texting of photographs of his penis to victim C, who was 16 years
old at the time of the March 2017 communications. See R.C. 2907.31(A)(1),(F) (first-
degree misdemeanors). Appellant was also charged with nine counts of illegal use of a
minor in nudity-oriented material for possessing or viewing certain photographs found on
a hard drive during the execution of search warrants at his residence. See R.C.
2907.323(A)(3),(B) (fifth-degree felonies).
{¶4} Appellant filed a motion to suppress evidence seized during the search of
his Instagram account and the later search of his residences. The affidavits and warrants
issued on 4/5/17 and 5/12/17 were admitted at the suppression hearing and are reviewed
in detail in assignment of error one. The trial court denied the suppression motion.
(11/27/2019 J.E.).
{¶5} After a jury trial, Appellant was convicted on all counts with the exception of
count four (one of the three disseminating charges). The testimony presented at trial is
reviewed where relevant within assignments of error two, three, and five (which address
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sufficiency of the evidence, weight of the evidence, and ineffective assistance of counsel).
As discussed further in assignment of error five, Appellant was sentenced to maximum
consecutive sentences for two rapes and gross sexual imposition and a combination of
concurrent and consecutive sentences for the other offenses, for a total sentence of 24.5
years. He filed a timely notice of appeal from the December 2, 2020 sentencing entry.
ASSIGNMENT OF ERROR ONE: SUPPRESSION
{¶6} Appellant sets forth five assignments of error, the first of which alleges:
“THE TRIAL COURT ERRED BY OVERRULING APPELLANT’S MOTION TO
SUPPRESS.”
{¶7} The Fourth Amendment to the United States Constitution provides that, “no
Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and
particularly describing the place to be searched, and the persons or things to be seized.”
The exclusionary rule was judicially created to safeguard Fourth Amendment rights. State
v. Hoffman, 141 Ohio St.3d 428, 2014-Ohio-4795, 25 N.E.3d 993, ¶ 24, citing United
States v. Calandra, 414 U.S. 338, 348, 94 S.Ct. 613, 38 L.Ed.2d 561 (1974). By Ohio
rule, a request for a search warrant must be accompanied by a sworn affidavit
“establishing the grounds for issuing the warrant.” Crim.R. 41(C)(1). A search warrant
will be issued if the judge finds probable cause for the search exists based on the
information in the affidavit. Crim.R. 41(C)(2) (“The finding of probable cause may be
based upon hearsay in whole or in part, provided there is a substantial basis for believing
the source of the hearsay to be credible and for believing that there is a factual basis for
the information furnished.”).
{¶8} “An affidavit must provide the magistrate with a substantial basis for
determining the existence of probable cause * * *.” Illinois v. Gates, 462 U.S. 213, 239,
103 S.Ct. 2317, 76 L.Ed.2d 527 (1983). In evaluating probable cause in an affidavit
submitted in support of a search warrant, the duty of the judge or magistrate issuing the
warrant is to consider all of the circumstances in the affidavit and “make a practical,
common-sense decision” as to whether there is “a fair probability that contraband or
evidence of a crime will be found in a particular place.” Id. at 238-239. “The probable-
cause standard is incapable of precise definition or quantification into percentages
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because it deals with probabilities and depends on the totality of the circumstances.”
Maryland v. Pringle, 540 U.S. 366, 370-71, 124 S.Ct. 795, 157 L.Ed.2d 769 (2003).
{¶9} The court evaluates the nexus between the alleged crime and the objects
to be seized or the place to be searched. State v. Castagnola, 145 Ohio St.3d 1, 2015-
Ohio-1565, 46 N.E.3d 638, ¶ 34. The affiant can make reasonable inferences, and the
facts behind any significant inferences should be disclosed to the issuing judge, who can
make their own inferences. Id. at ¶ 39-41.
{¶10} The probable cause decision examining the totality of the circumstances is
entitled to great deference and doubtful cases must be resolved in favor of upholding the
warrant. State v. Jones, 143 Ohio St.3d 266, 2015-Ohio-483, 37 N.E.3d 123, ¶ 13-14.
Search warrant affidavits “must be tested and interpreted by magistrates and courts in a
commonsense and realistic fashion. They are normally drafted by nonlawyers in the midst
and haste of a criminal investigation. Technical requirements of elaborate specificity once
exacted under common law pleadings have no proper place in this area.” United States
v. Ventresca, 380 U.S. 102, 108, 85 S.Ct. 741, 13 L.Ed.2d 684 (1965).
{¶11} Upon the establishment of probable cause in the affidavit, the aforequoted
Fourth Amendment also states the warrant must set out the scope of the authorized
search with particularity. Payton v. New York, 445 U.S. 573, 584, 100 S.Ct. 1371, 63
L.Ed.2d 639 (1980). The purpose of requiring the search warrant to “particularly describe
the place to be searched and the persons or things to be seized” is to avoid “wide-ranging
exploratory searches.” Maryland v. Garrison, 480 U.S. 79, 84, 107 S.Ct. 1013, 94 L.Ed.2d
72 (1987). “In search and seizure cases where a warrant is involved, the requisite
specificity necessary therein usually varies with the nature of the items to be seized.
Where, as here, the items are evidence or instrumentalities of a crime, it appears that the
key inquiry is whether the warrants could reasonably have described the items more
precisely than they did.” State v. Benner, 40 Ohio St.3d 301, 307, 533 N.E.2d 701 (1988).
Even a search warrant with broad categories of items to be seized is proper when the
description is as specific as the criminal activity being investigated allows. Castagnola,
145 Ohio St.3d 1 at ¶ 80.
{¶12} Appellant initially contests the denial of his suppression motion related to
the Instagram warrant. He contends the affidavit to obtain the search warrant for his
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Instagram account lacked probable cause and the warrant was overbroad by authorizing
a general exploratory search.
{¶13} The affidavit for the Instagram warrant explained the investigation began
when a father called the Boardman police to report finding an Instagram message on his
15-year-old son’s phone suggesting he regularly bought tobacco products from Appellant.
The father saw the following message from another juvenile to his son: “if you got 10 lets
go Bobs and get a blizzy.” (The father explained this is what his son called a black and
mild cigar.) When the father responded while pretending to be his son, he discovered
Robert Boyd had been providing alcohol and tobacco to juveniles at his residence in
Boardman and other locations.
{¶14} On April 3, 2017, the school resource officer (a Boardman police sergeant)
met with the juvenile (who is not one of the victims in this case). The juvenile admitted
Appellant provided him with alcohol and tobacco and additionally reported that at the
beginning of March 2017, Appellant asked via Instagram if he could give the juvenile a
“blowjob” (and then asked the juvenile to delete the message after his request was
rejected). It was noted that Appellant’s Instagram username (robertboyd5515) was
Appellant’s first and last name combined with the street address at his house on West
Boulevard. The police were provided with screenshots of conversations between this
username and the reporting juvenile.
{¶15} On March 18, 2017, the juvenile asked Appellant for a “favor” by stating:
“All I have is a dollar and I really need a black and mild” and “I’d ask for a pack but I don’t
have enough to get u back.” Appellant arranged to meet the juvenile at a gas station,
telling him to “jump in the mustang so no one sees me giving it to ya” after noting, “You
showed me you can keep a secret.”
{¶16} On March 22, 2017, the juvenile asked for “blacks with that bottle, I got
money for em, don’t forget what the bottle is for lol.” Appellant asked, “No school
tomorrow?” The juvenile disclosed he had been expelled, and Appellant arranged to meet
him at a certain address.
{¶17} On March 28, 2017, Appellant reminded the juvenile, “Delete our messages
here.” The juvenile responded, “I do. I’m broke but I really need a black.” Appellant
replied, “Messages aren’t deleting here. Thats weird.” Appellant then instructed him how
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to delete the messages. (Appellant also tried to direct the child to Snapchat, which would
automatically delete each message once read.)
{¶18} Other screenshots showed conversations wherein the juvenile disclosed to
his friend: he has been trying to “get wit me”; he “asked me to let him suck my dick”; “he
wont stop trying”; “he dropped off the bottle and snapped me and said damn ur so fine”;
and “He keeps asking me for dick pics.” In one message, the reporting 15-year-old
juvenile explained: “it started with him saying I’ve heard a rumor you let [someone] suck
u off”; “I was like bob wym and he said doing that to u would be interesting and I said nah
bob”; “he just started asking me to keep it a secret and shit and all that, but all the time
he snaps and dms me”; “he might be a pedophile but he do be getting me free shit like all
the time and he’s always given me rides and shit, he bought me that bottle * * * and gave
me a pack of blacks for free”; and “he’ll just be like having a normal convo and then outa
no where start saying shit about my dick and how he wants to gimme head and make me
relax.”
{¶19} The friend (whose identity the police confirmed) disclosed in a message,
“he asked me for a threesome with my best friend and then he asked me for nudes and
one time I asked him for a ride and he told me if I clean his house naked that he would
help me.” This friend also said, “U know he literally had sex with this one guy at our
school?”
{¶20} Based upon the above-recited evidence, the affiant attested to believing
Appellant provided alcohol and tobacco products to juveniles on multiple occasions,
encouraged the deletion of evidence, and solicited sex from juveniles online. The
resulting search warrant for the Instagram records of robertboyd5515 was limited to the
time period of February 1, 2017 through April 4, 2017. The warrant said it was to search
for messages to be used in the prosecution of the offenses of sale of liquor to underage
persons, contributing to the delinquency of a minor, unlawful sexual conduct with a minor,
and importuning. In addition to seeking messages and photos, the warrant asked for
location and identifying information.
{¶21} The affidavit clearly set forth a substantial basis for finding there was a fair
probability evidence of various crimes would be found within the Instagram account of
robertboyd5515. They had screenshots of incriminating conversations between that
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account and a 15-year-old. Additionally, this child specifically told the police Appellant
asked if he could provide oral sex to the juvenile (who was under the age of sexual
consent), and the child confirmed Appellant provided him with alcohol and tobacco
products. Conversations between this child and a friend showed the child was
complaining of the conduct before his father interceded. The probability of finding
evidence of illegal conduct, including attempts, did not apply to just this child. Another
juvenile acknowledged to the reporting juvenile in preserved messages he or she had a
similar experience with Appellant requesting nude photos, proposing the exchange of
services (a ride for nude cleaning), and asking for sex via a threesome. In addition, the
reporting juvenile’s father saw a message from another juvenile encouraging his son to
go with him to “bobs” to buy tobacco products. Under the totality of the circumstances,
there was probable cause for the issuance of a search warrant for the Instagram account
for the limited date range.
{¶22} Contrary to Appellant’s contention, the resulting search warrant was not
overbroad. It sought messages and photos from an Instagram account during a limited
two-month period surrounding the screenshots and asked for associated information in
order to confirm the identity of the user. The warrant listed the crimes for which the
evidence would be used if found. The police would not have been able to find messages
related to the crimes being investigated without reading the messages provided by
Instagram. They were not required to have Instagram screen the messages for them or
only seek messages involving the reporting juvenile (who showed them some of the
messages he received from Appellant). The warrant was as specific as the
circumstances allowed. See Benner, 40 Ohio St.3d at 307.
{¶23} As to subsequent warrants allowing the search of devices at Appellant’s
residences, Appellant initially sets forth an argument that is dependent on the above
arguments. That is, he argues if his Instagram suppression argument is sustained, then
the later warrants should be invalidated as the fruit of the poisonous tree because the
later affidavits partially relied on the results of the Instagram warrant. As the suppression
arguments on the Instagram warrant are without merit, Appellant’s initial argument on the
subsequent warrants fails as well.
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{¶24} Next, Appellant contends the affidavit for the search of devices at his
residences lacked probable cause because it included old or irrelevant events and there
was no nexus between the crime alleged and the things to be seized. He also complains
the search warrant lacked specificity and thus allowed a “fishing expedition” on his entire
electronic life.
{¶25} On May 11, 2017, a month after the Instagram warrant was issued, a search
warrant was issued for each of Appellant’s residences in Boardman. The affidavit in
support of each warrant pointed out he moved to the Lockwood Boulevard residence after
his West Boulevard residence suffered a fire in November 2016. 1 The affiant first
reviewed the facts contained in the April 2017 affidavit for the Instagram warrant. Next,
Appellant’s arrest history was recited as including harassment, unauthorized use of a
motor vehicle, unlawful restraint, assault, and domestic violence (in 2008, 2009, and
2017). Previous investigations were also reviewed.
{¶26} According to the affidavit, a 2013 investigation was initiated when a 14-year-
old friend of Appellant’s son reported Appellant showed him photographs on a computer
of young boys (estimated to be six to eight years old) in “skimpy clothes” and said he
wanted to take a similar photograph of him. When the boy lifted up his shirt, Appellant
asked him to turn around and took a picture of his bare back. The boy said Appellant
then pulled down the top of his shorts and underwear to expose the top of his buttocks
for the next photograph. The boy also reported Appellant gave him a ride during which
Appellant offered to give the boy a massage to help him relax.
{¶27} Appellant told the police he merely offered the use of a massage chair and
denied showing the boy inappropriate photographs. He admitted taking shirtless
photographs of the boy but denied pulling down his shorts. He told the police he deleted
the photographs. After being instructed by the police not to contact the boy or his family,
Appellant contacted the boy’s mother and offered to show her one of the photographs
(which he told the officer he deleted). The photograph showed the boy shirtless from the
back (his buttocks were not visible).
1It was acknowledged the affidavits and warrants for each residence was the same except for the address.
We will thus refer to affidavit and warrant in the singular when discussing the residential search.
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{¶28} In addition, a Children Services investigation was initiated in 2016 when
Appellant’s adopted son reported during a group counseling session that he had a
flashback of being forced to perform oral sex on his adoptive father when he was seven
or eight years old. He also said Appellant tried to take photographs of his friend without
pants. Appellant denied the oral sex incident to a caseworker and said he showed the
photographs of the friend to the police and the boy’s parents (which was false as he only
showed one photograph). The caseworker was unable to speak to Appellant’s son again
until he appeared in juvenile court with his father. When she interviewed the son, he
altered his story. He said he remembered “someone” performed oral sex on him but
came to believe it may have occurred before he was adopted; he also said he sometimes
believed it was just a dream.
{¶29} The search warrant affidavit also noted at the time of the November 2016
fire, a 16-year-old friend of Appellant’s son was staying with Appellant, even though his
son was living at a rehabilitation center. It was additionally disclosed police made contact
with Appellant in January 2017 after his daughter was repeatedly truant. They found her
at a motel where she intended to meet a registered sex offender.
{¶30} A few days later, Appellant contacted the police to say a juvenile he allowed
to stay with him before the fire was heavily using drugs and was associated with four
other juveniles whom he also believed were using drugs. One of these juveniles (age 15)
was questioned by police in March 2017 for a noise complaint and said he obtained
fireworks from Appellant’s residence. After messages were recovered with the Instagram
warrant, the police saw a message from this juvenile to Appellant asking, “Can you come
get me and [other juvenile] and we can [emojis of open mouth and fireworks].” (An officer
opined this emoji combination represented oral sex.)
{¶31} The Instagram warrant also led the police to messages between Appellant
and a 17-year-old boy. The conversations included discussions about sex acts and the
17-year-old asking how he could make money. Appellant advised the juvenile to delete
his messages and attempted to direct him to Snapchat. Appellant’s first recovered
message to this juvenile was a sad face with the message, “if you weren’t interested you
just needed to tell me. I still would have helped you with finding work and that to help you
out.” Later, Appellant asked, “Does that mean your still interested in a bj?”
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{¶32} In other conversations, the 17-year-old asked, “What is the fastest way to
make $375? Appellant replied, “Legally?” The juvenile responded, “ANY WAY. I NEED
THE MONEY.” The juvenile said: he wanted to buy his dream camera; he had no job;
and he could not afford to get his driver’s license. When he again asked how to make
money, Appellant said, “There really is no shortcut to money other than work.”
{¶33} Appellant talked about meeting the 17-year-old at his “other house” which
he described as the “One im working on” and as being located “2 blocks from current
house.” They discussed whether they should just park the car somewhere, and Appellant
asked the juvenile if he was into “Top, bottom, etc?” He also asked if the juvenile had
“any other pics.” Appellant’s messages said he mapped the address in his phone to the
juvenile’s residence thirty minutes away and later indicated Appellant was on his way to
retrieve the juvenile. Two hours later, Appellant texted, “Just got home” and “Did you
have fun?” The juvenile did not respond. The juvenile’s Facebook account was open to
the public, and the police learned he purchased the desired camera for $375 after his
meeting with Appellant.
{¶34} The affiant further explained the IP addresses captured by Instagram were
associated with Appellant’s house on Lockwood Boulevard and a cell phone. The phone
was registered to Appellant’s juvenile son, but Appellant provided that phone’s number to
police as his personal number when they arrested his daughter on May 3, 2017. At that
time, police officers noticed three desktop computers, a laptop, and several cell phones.
{¶35} The affiant referred to the offenses of importuning and contributing to the
delinquency of a minor with alcohol and tobacco, citing to the juvenile’s report that
instigated the prior Instagram warrant and to the conversations with other juveniles
discovered from that warrant. The affiant also referred to the potential for finding
communications with juveniles and the probability Appellant paid a juvenile for sex. The
affiant further emphasized Appellant’s pattern of grooming children, noting the technique
is used by sex offenders to gain trust, test secret-keeping, and make the child a willing
participant. The affiant concluded by stating he believed Appellant possessed at his
residence phones, computers, and drives which could be used to store child pornography
or communications on child pornography or child exploitation. Permission was requested
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to preview the devices at the scene to avoid power disconnection (which also served to
limit the amount of devices eventually seized).
{¶36} The search warrant listed some of the offenses being investigated: sale of
liquor to an underage person, contributing to the delinquency of a minor, unlawful sexual
conduct with a minor, and importuning.2 The warrant found probable cause to believe
there was evidence relevant to the crimes being investigated at the residences, including
on cell phones, security DVRs, computers and drives which could be used to store child
pornography, and records of communications on the topic of child exploitation or
contributing to the delinquency of a minor.
{¶37} During the execution of the search warrant, BCI agents prescreened various
devices. From the seized devices, the trial evidence was recovered from: Appellant’s
cell phone (which contained the photographs of Appellant’s penis sent to victim C,
constituting the misdemeanor charges of disseminating matter harmful to juveniles); and
a hard drive (which contained the nine photographs of nude pre-pubescent children,
constituting the charges of illegal use of a minor in nudity-oriented material).
{¶38} Regarding the warrants allowing the search of his devices, Appellant says
the trial court failed to specifically determine whether there existed a nexus between the
crimes alleged and the things to be seized and claims some of the evidence was stale.
In determining whether there was fair probability that evidence of a crime will be found in
a particular place, some considerations include “how stale the information relied upon is
when the facts relied upon occurred, and whether there is a nexus between the alleged
crime, the objects to be seized, and the place to be searched.” Castagnola, 145 Ohio
St.3d 1 at ¶ 34-35.
{¶39} Appellant’s allegation of stale evidence cites the recitation in the affidavit
regarding the 2013 investigation, which started when a 14-year-old reported Appellant
showed him photographs of very young, skimpily-dressed boys on his computer and took
2 Unlawful sexual conduct with a minor occurs when an adult has sexual conduct with a 13 to 15 year old.
R.C. 2907.04(A). Importuning includes the situation where an adult solicits a 13 to 15 year old to engage
in sexual conduct, when the offender is four or more years older, whether or not the offender knows the
age of the other person. R.C. 2907.07(B)(1), (D)(1) (or telecommunications device solicitation of 13 to 15
year olds and reckless as to age). We also note the offense of compelling prostitution includes knowingly
inducing or soliciting a minor (under 18) for sex for hire regardless of knowledge of age; compulsion is not
actually an element where a minor is a victim. R.C. 2907.21.
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a photograph of the boy’s bare back and then the top of the boy’s buttocks. Appellant’s
staleness argument also includes the recitation in the affidavit about his son’s 2016
disclosure at a group counseling session that he had a flashback that his adoptive father
forced him to perform oral sex on him when he was younger.
{¶40} It was not improper to set forth various prior investigations in a search
warrant to show pattern or escalation in a new child-related investigation involving sexual
requests. This was by no means the only evidence to support the warrant seeking
evidence of child pornography or child exploitation from Appellant’s devices during an
investigation which included the provision of alcohol and tobacco products to children. A
child under the age of 16 had recently reported Appellant solicited him for sex. And,
Appellant repeatedly asked the child for illegal photographs of his penis, all while
Appellant was supplying this minor with alcohol and tobacco products. The police also
saw a communication from a different juvenile asking this child if he had money so they
could go to Appellant’s residence to buy tobacco and a communication from another
juvenile who claimed to have been propositioned by Appellant for sex with allusions to an
exchange of services.
{¶41} Then, from the results of the Instagram warrant, the police gained probable
cause to believe Appellant induced a different minor to have sex for hire in the same time
period. Appellant discussed this occurring at his house, and the police had prior
information on Appellant’s use of security cameras within the house. Again, it is the
totality of the circumstances set forth in the warrant that a trial court considers in
determining probable cause for a warrant. A court need not evaluate each piece of
evidence and reject it if it would not provide probable cause by itself.
{¶42} After the trial court found the search of the Instagram account was
supported by probable cause and conducted pursuant to a warrant that was not
overbroad, the court then concluded the evidence found as a result of the Instagram
warrant led to additional evidence that established probable cause for the search of the
residences. The finding of probable cause implicitly contained a finding of a sufficient
nexus. And, there was in fact a nexus between the criminal activity being investigated
and the place to be searched when considering the totality of the circumstances, including
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the nature of the evidence. See State v. Dennison, 2018-Ohio-5126, 125 N.E.3d 257, ¶
22-26 (7th Dist.).
{¶43} Various offenses regarding minors were at issue, and Appellant’s conduct
of seeking illegal images from minors by communicating with them online was related
even to the initially reported offenses of providing alcohol and tobacco to minors. A device
such as Appellant’s phone or computer (with a hard drive) would have been the method
of communication and the place where electronic images involving child pornography or
exploitation (including soliciting) could be stored, which was all relevant to the offenses
under investigation. The warrant specified the types of files to be seized. See State v.
Waters, 8th Dist. Cuyahoga No. 103932, 2017-Ohio-650, ¶ 16 (finding search of
electronic storage devices was not overbroad or insufficiently particularized while
searching for child pornography). In evaluating the totality of the circumstances, we point
to our above review of both the affidavit in support of this warrant for the search of devices
and our review of the affidavit in support of the Instagram warrant (as this information was
restated within the subsequent affidavit).
{¶44} We also point out our situation is distinguishable from Castagnola where:
the police were investigating vandalism of the prosecutor’s vehicle; a detective claimed
the defendant said he looked up the address online; the warrant authorized a search of
all electronic storage devices without saying what they were looking for besides listing
offenses under investigation regarding the damage; and the agents searching the
computers opened image files and found child pornography. Castagnola, 145 Ohio St.3d
1. The Castagnola defendant pointed out the police had no knowledge he had a computer
when the warrant was issued, and the detective merely inferred the defendant looked up
the prosecutor’s address online (falsely portraying that the defendant said he found the
address online). Castagnola, 145 Ohio St.3d 1 at ¶ 16, 41 (“a magistrate cannot be
viewed as neutral and detached if the magistrate issues a search warrant that is
unknowingly based on the police officer's conclusions”), 59 (finding “based on the totality
of the circumstances, that there was no probable cause to believe that a computer in
Castagnola's residence was used in furtherance of the alleged crimes”).
{¶45} Here, the police saw many computers and phones at Appellant’s residence
mere days before the device warrant, they knew he used an electronic device to
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communicate with the juveniles, and there are no allegations of false statements or
inferences improperly framed as facts. Rather, the trial court was left to make the
reasonable inferences. Moreover, in our case, the offenses being investigated
specifically involved child exploitation and pornography, and the warrant described the
parameters of the electronic device search as looking for these categories of files.
Compare id. at ¶ 76-77. We recently rejected an argument claiming a warrant lacked
specificity where it instructed the officers to search a computer and seize evidence
relating to sexual offenses involving juveniles (listing unlawful sexual conduct with a
minor, importuning, disseminating matter harmful to juveniles, and pandering sexually
oriented matter involving a minor). State v. Bugno, 7th Dist. Mahoning No. 20 MA 0030,
2022-Ohio-2008, ¶ 39-41.
{¶46} The warrant in the case at bar guided the judgment of the searchers and
did not include items that should not be seized or call for a general exploratory search of
the devices; rather, it described the items to be seized as best as could be done under
the circumstances of this case and the nature of the activity. See id. at ¶ 79-80. The trial
court’s probable cause decision is entitled to great deference and doubtful cases must be
resolved in favor of upholding the warrant. Jones, 143 Ohio St.3d 266 at ¶ 13-14. We
conclude the trial court had substantial evidence from which to conclude there was a fair
probability that messages or images evidencing child pornography or child exploitation
would be found on Appellant’s devices.
{¶47} Finally, Appellant contends if his arguments have merit, then the good faith
exception would not apply to save the searches. “Under the good-faith exception,
evidence obtained during a search conducted pursuant to a warrant that is unsupported
by probable cause will not be excluded if the officers who obtained the evidence acted
reasonably in relying on the warrant.” State v. Dibble, 159 Ohio St.3d 322, 2020-Ohio-
546, 150 N.E.3d 912,¶ 9 (listing four examples where this exception will not apply), citing
United States v. Leon, 468 U.S. 897, 924-925, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984).
Relying on the third example, Appellant says the warrants were based on affidavits “so
lacking in indicia of probable cause as to render official belief in its existence entirely
unreasonable.” See id. This inquiry has been discussed in combination with the second
Dibble example, which objectively evaluates the totality of the circumstances and asks
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whether “a reasonably well trained officer would have known that the search was illegal
despite the magistrate's authorization.” See Castagnola, 145 Ohio St.3d 1 at ¶ 93,
quoting Leon, 468 U.S. at 922 (“the marginal or nonexistent benefits produced by
suppressing evidence obtained in objectively reasonable reliance on a subsequently
invalidated search warrant cannot justify the substantial costs of exclusion”).
{¶48} As this court finds the warrants were valid under the above analysis, this
alternative argument need not be addressed. In fact, it was not addressed by the trial
court, as the trial court upheld the warrants and did not render an alternate opinion.
Appellant’s first assignment of error is overruled.
ASSIGNMENT OF ERROR TWO: SUFFICIENCY
{¶49} Appellant’s second assignment of error contends:
“APPELLANT’S CONVICTIONS WERE UNSUPPORTED BY SUFFICIENT
EVIDENCE.”
{¶50} Whether the evidence is legally sufficient to sustain a conviction is a
question of law dealing with adequacy. State v. Thompkins, 78 Ohio St.3d 380, 386, 678
N.E.2d 541 (1997). An evaluation of witness credibility is not involved in a sufficiency
review, as the question is whether the evidence is sufficient if taken as true. State v.
Yarbrough, 95 Ohio St.3d 227, 2002-Ohio-2126, 767 N.E.2d 216, ¶ 79, 82; State v.
Murphy, 91 Ohio St.3d 516, 543, 747 N.E.2d 765 (2001). In other words, sufficiency
involves the state's burden of production rather than its burden of persuasion.
Thompkins, 78 Ohio St.3d at 390 (Cook, J., concurring).
{¶51} In reviewing the sufficiency of the evidence, the court views the evidence in
the light most favorable to the prosecution to ascertain whether a rational juror could have
found the elements of the offense proven beyond a reasonable doubt. State v. Goff, 82
Ohio St.3d 123, 138, 694 N.E.2d 916 (1998). See also State v. Filiaggi, 86 Ohio St.3d
230, 247, 714 N.E.2d 867 (1999) (reasonable inferences are also viewed in favor of the
state); Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979) (all
of the evidence is to be considered in the light most favorable to the prosecution, including
reasonable inferences). The question is merely whether “any” rational trier of fact could
have found the contested elements were adequately established. State v. Getsy, 84 Ohio
St.3d 180, 193, 702 N.E.2d 866 (1998), quoting Jackson, 443 U.S. at 319.
Case No. 20 MA 0131
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{¶52} First, Appellant challenges the sufficiency of the evidence to support count
one, the rape of victim A. The elements of this offense are purposefully compelling
another to submit to sexual conduct by force or threat of force. R.C. 2907.02(A)(2) (who
is not the spouse). Appellant points out the age of sexual consent is 16 in Ohio, and
victim A was 17 years old. Appellant contends there was not sufficient evidence of force
or threat of force by emphasizing the following: the victim’s acknowledgement he initially
consented to anal sex; the lack of testimony on fear or threat; and the victim’s testimony
he did not try very hard to throw Appellant off him. The state points out rape can occur
after consent is withdrawn and urges the victim testified to force.
{¶53} Victim A testified he communicated with Appellant after seeing his online
photograph with a Lamborghini, which the victim believed belonged to Appellant. (Tr.
3131, 318). The victim testified he had a girlfriend but was curious. (Tr. 317). They
talked about sex. On March 31, 2017, they decided to meet for a sexual encounter. (Tr.
318, 341). Appellant retrieved the victim from Lisbon and brought him to Taco Bell and
then to his house which was still under construction from the fire. Before arriving at the
house, the victim expressed he was starting to feel on edge and did not feel right about
going. (Tr. 323). However, the victim “went along with it” and was thereafter initially
accepting of trying the sexual encounter. (Tr. 360). The victim noticed security cameras
around Appellant’s house, which appeared to be recording. (Tr. 324).
{¶54} They went into the bedroom where Appellant laid him down and removed
his pants. (Tr. 325). The victim was then bent over with his knees on the floor and his
chest and stomach on the bed. (Tr. 345). Appellant began performing anal sex on the
victim. Within five to ten seconds, the victim withdrew his consent. (Tr. 328, 344, 360).
The victim testified, “I didn’t like it at all; so I asked him to stop.” (Tr. 326). He further
testified: “it hurt * * * I just kept telling him don’t. * * * I told him no, but he kept going
anyway.” (Tr. 327-328).
{¶55} When asked if Appellant physically restrained him, the victim said
Appellant’s arms were on his hands and arms, which were spread out. The victim noted,
“I didn’t try my hardest to get him off.” (Tr. 328). When asked what he meant, the victim
said, “I mean if I tried my hardest to - - to get away, I just would have fully got up, threw
Case No. 20 MA 0131
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him off me and left.” He further explained, “I must have been in a state of shock.” (Tr.
357-358).
{¶56} After five to ten minutes, Appellant ejaculated inside of the victim. (Tr. 328-
329). When Appellant removed himself from the victim, the victim asked to go home. (Tr.
328). He noted he wished to exit the car as soon as he recognized where he was. (Tr.
329). He said Appellant told him not to tell anyone. (Tr. 330). He did not communicate
with Appellant again. (Tr. 330). The victim said he tried to push the event out of his head
and did not tell anyone about what happened until the police arrived at his door six weeks
later to investigate Appellant (after the Instagram warrant). (Tr. 331-332). The victim said
his drinking accelerated after the incident and he became an alcoholic. (Tr. 357).
{¶57} Force is defined as “any violence, compulsion, or constraint physically
exerted by any means upon or against a person or thing.” R.C. 2901.01(A)(1). When
evaluating force in the context of rape, relevant considerations may involve the age, size,
strength, and relationship of the parties. State v. Eskridge, 38 Ohio St.3d 56, 58, 526
N.E.2d 304 (1988). When defense counsel asked about a shirtless photograph sent to
Appellant, the victim said he worked out. (Tr. 337). The nurse practitioner who saw the
victim six weeks after the incident testified he was 5’7” and 141 pounds. (Tr. 370). The
victim was 17 years old while Appellant was 46 years old. The incident occurred in
Appellant’s house, and the victim was driven there by Appellant.
{¶58} The past and immediate history of consent may be relevant. Eskridge, 38
Ohio St.3d at 59. However, forcible rape is not foreclosed by the fact an encounter began
as consensual. In a case cited by the state, the Second District observed:
Evidence of consent * * * is not a static concept, though. Rape can be
established when the two participants start the encounter on a consensual
basis, “but the consent is revoked by words, actions or conduct that clearly
communicates non-consent, the defendant fails to respect the change in
consent, and purposely proceeds to engage in sexual conduct through force
or threat of force evidenced by violence, physical restraint, or some type of
coercive or threatening conduct that creates a belief or fear that physical
force will be used if the victim does not consent.”
State v. Freeman, 2d Dist. Greene No. 2020-CA-33, 2021-Ohio-734, ¶ 42.
Case No. 20 MA 0131
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{¶59} The victim may have initially consented to the sexual encounter but within
seconds, he felt pain and asked Appellant to stop. Despite his repeated requests for
Appellant to stop, Appellant continued imposing anal sex upon the juvenile victim while
pressing the victim’s hands and arms into the bed as the victim was face down with his
legs over the edge of the bed.
{¶60} Notably, the rape statute specifically states: “A victim need not prove
physical resistance to the offender in prosecutions under this section.” R.C. 2907.02(C).
A rational juror could find Appellant engaged in purposeful conduct which satisfied the
definition of force, which merely requires “any” compulsion or constraint physically
exerted by “any” means. R.C. 2901.01(A)(1).
{¶61} Next, Appellant contends there was insufficient evidence to support counts
five and six, the misdemeanor counts of disseminating matter harmful to juveniles.
(Appellant was acquitted of the count four disseminating charge.) The pertinent statutory
division states: “No person with knowledge of its character or content, shall recklessly do
any of the following: (1) Directly sell, deliver, furnish, disseminate, provide, exhibit, rent,
or present to a juvenile * * * any material or performance that is obscene or harmful to
juveniles * * *.” R.C. 2907.31(A)(1),(F) (first-degree misdemeanor if the material is
harmful; felony if the material is obscene). The state agrees the mental state of
recklessness also applies to the recipient’s status as a juvenile.
{¶62} “A person acts recklessly when, with heedless indifference to the
consequences, he perversely disregards a known risk that his conduct is likely to cause
a certain result or is likely to be of a certain nature.” R.C. 2901.22(C). “A person is
reckless with respect to circumstances when, with heedless indifference to the
consequences, he perversely disregards a known risk that such circumstances are likely
to exist.” Id. This “likely” mental state for recklessness merely involves “good reason for
expectation or belief” (and is easier to show than the higher “probably” mental state).
State v. Young, 8th Dist. Cuyahoga No. 85224, 2005-Ohio-3584, ¶ 17, citing Staff Note
to R.C. 2901.22(C).
{¶63} The indictment alleged these counts occurred on or about March 14, 2017.
The investigating officer testified that after seizing Appellant’s cell phone while executing
the search warrant at the residence in May 2017, he discovered Appellant texted
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photographs of his penis to a juvenile. (Tr. 590). The officer testified these photographs
were sent in March of 2017 (and said he could look at the printout of the text history to
check the day of the month). (Tr. 556-557). When the police confronted Appellant about
the texted photographs, Appellant voiced his mistaken belief it was legal because the
minor was 16 (apparently assuming the law on sexual conduct applied to disseminating).
(Tr. 573).
{¶64} Victim C testified he was 16 years old when he responded to Appellant’s
Craigslist advertisement, which was captioned to suggest Appellant was looking for a
homosexual encounter. They originally used both email and texts, exchanging
photographs of their genitals and making plans to meet. (Tr. 389-393, 399-402, 408).
While testifying, the juvenile recipient reviewed the recovered March 2017 texts sent to
him by Appellant and identified two photographs of Appellant’s penis and two
photographs of Appellant’s shirtless torso. (Tr. 394, 400-402); (St.Ex. 15-18).
{¶65} While viewing the printout of recovered texts, victim C also testified he told
Appellant he was only 16 in a March 29, 2017 text. (Tr. 412). Appellant responded to
the age disclosure by texting: “High school, then”; “16 is legal in Ohio”; and “I don’t mind
the age.” (Tr. 404). They met for their second sexual encounter after the text about being
16. (Tr. 409). The juvenile recipient believed they exchanged photographs again after
this disclosure, but he also seemed to indicate the state’s packet of evidence contained
all the photographs he received from Appellant (and the recovered photographs were
sent before the disclosure). (Tr. 411, 413).
{¶66} Appellant’s sufficiency argument revolves around his contention there was
no evidence he was reckless as to the recipient’s age of 16 because the recipient testified
he initially told Appellant he was 19 years old. (Tr. 391). As the state points out, the
victim told Appellant he did not have a driver’s license, he was in school, and he lived with
his family. (Tr. 396). Notably, Appellant previously spent time with the victim in person
when they met for a sexual encounter in late 2016. (Tr. 392). The jury saw a photograph
the juvenile sent to Appellant depicting what the juvenile looked like in March 2017, when
Appellant sent the juvenile photographs of his penis. (St.Ex. 14); (Tr. 396-399).
{¶67} Circumstantial evidence and direct evidence inherently possess the same
probative value, and intent is typically established by circumstantial evidence and
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inferences as a person's intent rests in their mind. State v. Treesh, 90 Ohio St.3d 460,
485, 739 N.E.2d 749 (2001). Even if Appellant only sent photographs of his penis before
the victim specifically disclosed his true age, a rational juror could find Appellant was
reckless in believing the victim was 18 or older when he sent the photographs
representing the two counts at issue.
{¶68} Appellant’s final sufficiency argument contests the convictions for counts
seven through fifteen, which arose from the nude photographs of children found on a hard
drive during the execution of search warrants at Appellant’s residence. The pertinent
statutory elements of illegal use of a minor in nudity-oriented material are to possess or
view any material that shows a minor who is not the person's child or ward in a state of
nudity. R.C. 2907.323(A)(3) (unless an exception applies such as artistic, medical, or
other proper purpose involving a person with a proper interest in the material or there is
written consent of the parent). The mental state is recklessness. State v. Young, 37 Ohio
St.3d 249, 252, 525 N.E.2d 1363 (1988), paragraph three of syllabus.
{¶69} In Young, the Ohio Supreme Court construed the statute as prohibiting the
aforementioned nudity only “where such nudity constitutes a lewd exhibition or involves
a graphic focus on the genitals * * *.” Id. at 252, rev’d on other grounds, Osborne v. Ohio,
495 U.S. 103, 113-114, 110 S.Ct. 1691, 109 L.Ed.2d 98 (1990) (due process issue where
jury was not instructed on scienter and qualifying nudity definition under new
construction). “By limiting the statute's operation in this manner, the Ohio Supreme Court
avoided penalizing persons for viewing or possessing innocuous photographs of naked
children.” Osborne, 495 U.S. at 113-114 (the state court was permitted to construe the
statute in a constitutional manner to avoid a constitutional overbreadth challenge while
allowing the statute to remain in full force as construed). The parties agree the trial court’s
jury instruction properly limited the statute’s operation in the manner described by Young
and Osborne.
{¶70} Appellant contends no rational person would find the nine photographs
involved a lewd exhibition or a graphic focus on the genitals. Lewd has been generally
defined as “sexually unchaste or licentious * * * lascivious * * * inciting to sensual desire
or imagination * * *.” State ex rel. Rear Door Bookstore v. Tenth Dist. Ct. of Appeals, 63
Ohio St.3d 354, 358, 588 N.E.2d 116 (1992), quoting Webster's Third New International
Case No. 20 MA 0131
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Dictionary 1301 (1986). According to dictionary.com, the definition of licentious includes:
a throwing off of sexual restraint; lewd character or behavior; or wanton disregard or
transgression of laws, rules, or moral norms. As for the graphic focus option, it has been
concluded (in a case cited by the defense) there can exist a graphic focus on the child’s
genitals even where the rest of the child’s body is in the picture. State v. Jewell, 2d Dist.
Montgomery No. 16254 (Aug. 22, 1997).
{¶71} Appellant cites the testimony of the BCI agent who said she found “graphic
images appearing to depict underage nudity” on Appellant’s hard drive. (Tr. 296). While
identifying the photographs for the record, she said the subject of each photograph was
a naked juvenile and explained any identifying features in the photograph as follows:
male holding a watermelon; female holding globe on top of her head; female; male holding
a watermelon; female posing on a beach with a star drawn on her torso; female on a
beach with a butterfly painted on her upper chest; female with a palm tree and water
painted just above her pubic area; two females, one with a butterfly painted on her chest
and one with a palm tree painted above her pubic area; and male holding two pool sticks
with a triangle around his neck. (Tr. 298-299). Appellant concludes this was insufficient
to establish the contested element.
{¶72} However, the nine photographs were provided for the jury’s evaluation
during the testimony and deliberations. (Tr. 297); (St.Ex. 9A-I). The witness was not
required to supplement the jury’s viewing by detailing the positions of the children,
explaining how the focus seems to be on their genitals, opining the displays were meant
to incite sexual imagination, or asserting they disregarded moral norms.
{¶73} The state reiterates the position espoused during trial. For instance, when
responding to motion for acquittal on these charges, the prosecutor argued “there is a
focus on the genitals” with “bare penises and testicles exposed, and vaginal areas that
the lips are exposed” while noting the lack of pubic hair allowed one to “very graphically
see those things.” (Tr. 606). In addition, the prosecutor’s closing argument to the jury
asked, “when you look at these photographs, where do your eyes immediately go? To the
exposed vaginas, to the breasts, to the penises sticking out. That is graphic focus on the
genitals.” (Tr. 736). We find these arguments are valid.
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{¶74} The children were prepubescent children but not so young as to expect
them to prance around naked on a beach or invite someone to play pool naked. The
scenes were staged. Many of the children were posed in positions with techniques (such
as the holding of props, lifting of arms, or spreading of limbs) meant to emphasize the
genitals or constituting a lewd exhibition due to the arguable intent to incite sexual
imagination (among certain viewers) by disregarding moral norms. The body paint
applied to some of the female children emphasized their genitals and breasts (such as:
a large star between and under the breasts with a face that was smiling and winking with
its points/legs spread above the posed pubic area; a butterfly painted over the chest using
the nipples as wing decorations with flowers trailing to the pubic area; and a palm tree
from the hip to one breast with painted water extending all the way to the top of the upper
labial fold).
{¶75} Even if one were to agree that it was a close case for some of the
photographs, it cannot be said that no rational juror could find the photographs constituted
a lewd exhibition or involved a graphic focus on the genitals. The matter is best
addressed as a question of weight of the evidence, which is discussed under the next
assignment of error. As a rational juror could find the contested elements of the various
crimes proven beyond a reasonable doubt, this assignment of error is overruled.
ASSIGNMENT OF ERROR THREE: WEIGHT
“APPELLANT’S CONVICTIONS WERE AGAINST THE MANIFEST WEIGHT OF
THE EVIDENCE.”
{¶76} Weight of the evidence concerns “the inclination of the greater amount of
credible evidence, offered in a trial, to support one side of the issue rather than the other.”
Thompkins, 78 Ohio St.3d at 387. The court evaluates the effect of the evidence in
inducing belief, but weight of the evidence is not a question of mathematics. Id. A weight
of the evidence review considers whether the state met its burden of persuasion. Id. at
390 (Cook, J., concurring) (as opposed to the burden of production involved in a
sufficiency review). When a defendant claims the conviction is contrary to the manifest
weight of the evidence, the appellate court is to 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
Case No. 20 MA 0131
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way and created such a manifest miscarriage of justice that the conviction must be
reversed and a new trial ordered. State v. Lang, 129 Ohio St.3d 512, 2011-Ohio-4215,
954 N.E.2d 596, ¶ 220, citing Thompkins, 78 Ohio St.3d at 387.
{¶77} “[T]he weight to be given the evidence and the credibility of the witnesses
are primarily for the trier of the facts.” State v. Hunter, 131 Ohio St.3d 67, 2011-Ohio-
6524, 960 N.E.2d 955, ¶ 118, quoting State v. DeHass, 10 Ohio St.2d 230, 227 N.E.2d
212 (1967), paragraph one of the syllabus. The trier of fact occupies the best position
from which to weigh the evidence and judge the witnesses’ credibility by observing their
gestures, voice inflections, and demeanor. Seasons Coal Co. v. Cleveland, 10 Ohio St.3d
77, 80, 461 N.E.2d 1273 (1984).
{¶78} Where a case is tried by a jury, only a unanimous appellate panel can
reverse on manifest weight of the evidence grounds. Ohio Constitution, Article IV, Section
3(B)(3). The power of the court of appeals to sit as the “thirteenth juror” is limited in order
to preserve the jury's primary function of weighing the evidence. Thompkins, 78 Ohio
St.3d at 389. Appellant separates his weight of the evidence arguments into four
groupings.
{¶79} First, Appellant contests the weight of the evidence offered in support of the
rape in count one. We discussed various facts concerning this offense in the prior
assignment of error on sufficiency. Here, Appellant argues there was ample reason to
doubt the veracity of victim A, emphasizing the following: the victim met with Appellant
with intent to engage in sex; he consented to the initiation of anal sex that night; the victim
said he did not try his hardest to get Appellant off of him; the victim did not report the rape
until the police came to his house six weeks later; and the victim’s statement to the police
and to the Child Advocacy Center suggested the anal sex was non-consensual in its
entirety, without indicating the anal sex began consensually.
{¶80} However, the jury did not clearly lose its way in weighing the evidence to
determine if Appellant used force via “any violence, compulsion, or constraint physically
exerted by any means” as defined by R.C. 2901.01(A)(1). The jury viewed victim A as he
testified and was in the best position to ascertain his credibility. He said he told Appellant
to stop more than once and Appellant refused to stop while holding his arms down. The
victim explained he was in state of shock when asked why he did not attempt to throw
Case No. 20 MA 0131
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Appellant off, which is not a requirement for a victim in any event. R.C. 2907.02(C) (“A
victim need not prove physical resistance to the offender”). The victim’s testimony also
indicated his lack of familiarity with the submissive physical position. Moreover, the jury
heard Appellant testify at trial and could find his version of the night lacking in credibility.
“When more than one competing interpretation of the evidence is available and the one
chosen by the jury is not unbelievable, we do not choose which theory we believe is more
credible and impose our view over that of the jury.” State v. Baker, 7th Dist. Mahoning
No. 19 MA 0080, 2020-Ohio-7023, ¶ 148, citing State v. Gore, 131 Ohio App.3d 197, 201,
722 N.E.2d 125 (7th Dist.1999).
{¶81} Second, Appellant contests the weight of the evidence to support the rape
in count two and the gross sexual imposition in count three, which both related to victim
B, who was 14 years old. The rape elements for count two were the same as in count
one: purposefully compelling another to submit to sexual conduct by force or threat of
force. R.C. 2907.02(A)(2). The elements of the charged gross sexual imposition were
as follows: having sexual contact with another by purposely compelling the other to
submit by force or threat of force. R.C. 2907.05(A)(1).
{¶82} Appellant admitted to committing the offense of sexual imposition against
victim B by masturbating him four times over the course of a year, including on the night
of the charged offenses against this victim. See R.C. 2907.06(A)(4) (sexual contact with
a child who is thirteen years of age or older but less than sixteen years of age, whether
or not the offender knows the age of such person, and the offender is at least eighteen
years of age and four or more years older than such other person). In his testimony,
Appellant denied using force or threats to make the victim submit to this touching and
denied performing anal sex on the victim.
{¶83} Victim B testified Appellant would buy juveniles alcohol and cigarettes. (Tr.
447). On the night of April 16, 2016, when he was 14 years old, the victim went to
Appellant’s house with friends and smoked marijuana while the other boys drank alcohol.
(Tr. 451). Appellant’s children were not present (the daughter was not home and the son
was away at a drug rehabilitation center). (Tr. 481-482). Appellant testified the juveniles
came over to purchase marijuana from a stranger he let live in his house but claimed he
did not know about the sales until later. (Tr. 620-622).
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{¶84} The victim said two of the boys he was with beat him up and took his phone,
forcing him to stay the night. (Tr. 450-451). Victim B said he eventually fell asleep in the
living room where two boys were also sleeping. (Tr. 454). He awoke to find Appellant on
top of him so that he could not move his hands; Appellant shushed the victim while
pressing a hand to the victim’s mouth. (Tr. 455-456). Victim B testified Appellant touched
his penis while holding him down. (Tr. 457). He demonstrated where his hands were
secured and explained Appellant used his legs to do so. (Tr. 490-491).
{¶85} Appellant removed the victim’s pants and put the victim’s penis in his mouth
while pressing his body down. (Tr. 458). Victim B testified Appellant then turned him
around holding his hands behind his back “like the police.” After the victim felt something
wet run down his backside, Appellant subjected the victim to anal sex. (Tr. 459-460).
The victim said he tried to yell, but Appellant put his hand over his mouth and no one
woke up. (Tr. 461). He testified: he could not move; all of Appellant’s weight was on
him; it hurt; and it “felt like forever.” (Tr. 460, 497). After the incident, Appellant instructed
him not to tell anyone and said he would hurt him if he told anyone. (Tr. 461, 467). The
victim discovered he was bleeding from his anus and stayed in the bathroom for the
remainder of the night. (Tr. 462-463).
{¶86} The next morning, the other boys beat him up again and pushed him in a
creek. (Tr. 463-464). Appellant brought him home, and the victim’s mother yelled at
Appellant in the driveway. The victim disclosed the beatings by the juveniles to his
mother, and she brought him to the hospital where a police report was filed against the
juveniles, who were thereafter arrested. (Tr. 546). The investigating officer described the
victim as timid and very small for his age. (Tr. 545). Photographs he took of the child in
the hospital on April 17, 2016 were admitted.
{¶87} Days after Appellant was arrested in May of 2017, victim B attended a
regular meeting with his juvenile probation officer at his school. The child was prohibited
from going to Appellant’s house as a term of his probation. When the probation officer
mentioned Appellant, the child began crying. (Tr. 431-433). The child then disclosed that
Appellant touched him a year ago. After this disclosure, the probation officer called the
school resource officer who was involved in the investigation of Appellant supplying illegal
products to minors, and the child disclosed the touching to this officer as well. (Tr. 470,
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597). Victim B testified he was too nervous to tell them everything. (Tr. 469). He said
he later disclosed the remainder of his story to the prosecution 1.5 years after his initial
disclosure because it got easier to talk after the passing of time and because he felt like
he could trust the prosecutors. (Tr. 471-472).
{¶88} The investigating officer acknowledged the victim stayed in communication
with Appellant after the night of April 16, 2016 and was one of the minors Appellant was
supplying with illegal products in 2017. (Tr. 599). Appellant’s testimony also pointed to
his friendly communications with victim B after the April 2016 encounter. (Tr. 644-645,
700).
{¶89} In arguing victim B’s testimony lacked credibility, Appellant points out the
victim’s initial disclosure was consistent with Appellant’s testimony. Appellant testified he
first masturbated the victim while the other two juveniles were awake and watching a
movie on the couch next to them. (Tr. 637). Nevertheless, he says it is unrealistic that
the alleged events involving force could take place next to two sleeping juveniles as the
victim testified. We note the testimony indicated the juveniles had been drinking alcohol.
Moreover, the jury saw the emotional testimony from victim B and the testimony
presented by Appellant. We cannot say they clearly lost their way in weighing the
evidence and assigning credibility.
{¶90} Third, Appellant discusses counts five and six, disseminating matter harmful
to juveniles, and argues the decision finding he was reckless as to the juvenile recipient’s
age was contrary to the manifest weight of the evidence. Appellant testified no
photographs were exchanged after the recipient disclosed he was 16. He emphasizes
the recipient answered Appellant’s ad on Craigslist, which website requests the person
replying to the ad be 18 years of age. However, this is not some major fact showing a
sender was not reckless as to the age of the person to whom he sent photographs of his
penis. Appellant testified he personally lied about his age all the time. (Tr. 671).
{¶91} We discussed additional evidence regarding these offenses in the prior
assignment of error, including the recipient’s disclosure to Appellant that he did not have
a driver’s license, lived with his family, and was in school. Furthermore, the jury viewed
photographs the recipient sent to Appellant depicting how he looked at the time.
Appellant’s testimony also disclosed he had multiple ads and he realized in 2017 that this
Case No. 20 MA 0131
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recipient was the same person he personally met for a sexual encounter in 2016 (after
the recipient responded to a different ad placed by Appellant). (Tr. 663). The
photographs of Appellant’s penis were sent to victim C months after their first sexual
encounter.
{¶92} The jury did not clearly lose its way and create a manifest miscarriage of
justice in finding Appellant reckless as to the recipient’s status as a juvenile under R.C.
2903.31(A)(1). We additionally point out “mistake of age is not a defense to a charge
under this section.” R.C. 2907.31(C)(2) (except as provided in division (B)(3), which
provides an affirmative defense if the material was harmful but not obscene and the
juvenile presented false identification documents).
{¶93} Lastly, Appellant incorporates the arguments from his sufficiency
assignment of error on counts seven through fifteen (illegal use of a minor in nudity-
oriented material). He contends the jury should not have weighed the features of the
photographs of naked children as constituting lewd exhibition or as involving graphic
focus on genitals, which is the nudity test set forth in the Ohio Supreme Court’s Young
case and approved on appeal by the United States Supreme Court in Osborne. See
Young, 37 Ohio St.3d 249; Osborne, 495 U.S. 103. We cite to the prior assignment of
error for our discussion of the nine photographs.
{¶94} Even if some hypothetical juror could disagree and find certain photographs
were not lewd exhibitions or were not graphically focused on genitals, we conclude the
jury did not clearly lose it way and create a manifest miscarriage of justice in judging the
photographs as fitting the definition set forth in Young and Osborne. This is not the
“exceptional case where the evidence weighs heavily” against the jury verdict and
requires this court to step in as the “thirteenth juror.” See Lang, 129 Ohio St.3d 512 at ¶
220. This assignment of error is overruled.
ASSIGNMENT OF ERROR FOUR: SENTENCING
{¶95} Appellant’s fourth assignment of error alleges:
“APPELLANT’S SENTENCE IS CONTRARY TO LAW.”
{¶96} The court sentenced Appellant to the maximum of 11 years on each rape
and the maximum of 18 months for gross sexual imposition to run consecutively. An
additional one year was added to the sentence for the counts of illegal use of a minor in
Case No. 20 MA 0131
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nudity-oriented material; the court imposed concurrent 6-month sentences on two
groupings to run consecutively. For these fifth-degree felony charges, six months was
the lowest prison sentence available. See R.C. 2929.14 (with 12 months as the
maximum). The aggregate sentence totaled 24.5 years. Appellant was also concurrently
sentenced to 180 days in jail for the misdemeanor charges of disseminating matter
harmful to juveniles.
{¶97} “The appellate court's standard for review is not whether the sentencing
court abused its discretion.” R.C. 2953.08(G)(2). Rather, the appellate court may only
reverse an appealable sentence in favor of the defendant:
if it clearly and convincingly finds either of the following:
(a) That the record does not support the sentencing court's findings under
division (B) or (D) of section 2929.13, division (B)(2)(e) or (C)(4) of section
2929.14, or division (I) of section 2929.20 of the Revised Code, whichever,
if any, is relevant;
(b) That the sentence is otherwise contrary to law.
R.C. 2953.08(G)(2).3
{¶98} Before challenging the consecutive nature of the sentences, Appellant
contests the imposition of maximum felony sentences. He concludes the sentences are
contrary to law because the record does not support them, quoting Marcum where the
Supreme Court observed: “an appellate court may vacate or modify a felony sentence
on appeal only if it determines by clear and convincing evidence that the record does not
support the trial court's findings under relevant statutes or that the sentence is otherwise
contrary to law.” State v. Marcum, 146 Ohio St.3d 516, 2016-Ohio-1002, 59 N.E.3d 1231,
¶ 1, citing R.C. 2953.08(G)(2). Relying on this principle, Appellant claims the trial court
failed to properly consider and weigh the purposes and principles of sentencing in R.C.
2929.11 and the seriousness and recidivism factors in R.C. 2929.12.
3Of the listed statutory divisions, Appellant cites to R.C 2929.14(C)(4) (consecutive sentencing). We note
specific findings are no longer required under R.C. 2929.13(B)(1). State v. Faiola, 7th Dist. Mahoning No.
21 MA 0094, 2022-Ohio-1126, ¶ 13. Also, the community control presumption did not apply to the felonies
of the fourth or fifth degree because they were not the most serious charges at the time of sentencing, and
gross sexual imposition was excluded as R.C. 2901.01(A)(9)(a) defines it as an offense of violence. R.C.
2929.13(B)(1)(a)(ii). See also R.C. 2929.13(B)(1)(b) (offense of violence), (iii) (bond violation), (iv) (felony
of the fourth or fifth degree sex offense in violation of section 2907).
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{¶99} Although division (G)(2)(a) of R.C. 2953.08 only lists specific statutes (such
as the consecutive sentencing statute), the Marcum Court additionally said “it is fully
consistent for appellate courts to review those sentences that are imposed solely after
consideration of the factors in R.C. 2929.11 and 2929.12 under a standard that is equally
deferential to the sentencing court.” Id. at ¶ 23. However, this statement has since been
declared dicta and rejected. State v. Jones, 163 Ohio St.3d 242, 2020-Ohio-6729, 169
N.E.3d 649, ¶ 28.
{¶100} As the state points out, the Supreme Court in Jones decided a reviewing
court cannot use subdivision (G)(2)(a) of R.C. 2953.08 to review whether the record
supports R.C. 2929.11 or R.C. 2929.12 findings as those statutes are not listed in
(G)(2)(a). Id. at ¶ 27-29. Furthermore, the “otherwise contrary to law” language in the
sentencing review statute does not allow the appellate court to reverse by finding “the
record does not support the sentence.” Id. at ¶ 38.
{¶101} “Nothing in R.C. 2953.08(G)(2) permits an appellate court to
independently weigh the evidence in the record and substitute its judgment for that of the
trial court concerning the sentence that best reflects compliance with R.C. 2929.11 and
2929.12.” Id. at ¶ 42 (“In particular, R.C. 2953.08(G)(2) does not permit an appellate
court to conduct a freestanding inquiry like the independent sentence evaluation” the
Court conducts when reviewing a death sentence). See also State v. Toles, 166 Ohio
St.3d 397, 2021-Ohio-3531, 186 N.E.3d 784 (affirming based on Jones where a
defendant argued the record did not support certain findings).
{¶102} In addition, as to Appellant’s claim the trial court failed to consider certain
general sentencing factors, we point out “neither R.C. 2929.11 nor 2929.12 requires a
trial court to make any specific factual findings on the record.” Jones, 163 Ohio St.3d 242at ¶ 20, citing State v. Wilson, 129 Ohio St.3d 214, 2011-Ohio-2669, 951 N.E.2d 381, ¶
31 and State v. Arnett, 88 Ohio St.3d 208, 215, 724 N.E.2d 793 (2000). We also note at
the sentencing hearing and in the judgment entry, the trial court declared it reviewed the
purposes and principles of sentencing in R.C. 2929.11 and the seriousness and
recidivism factors in R.C. 2929.12. (Sent.Tr. 19); (12/2/20 J.E.).
{¶103} Regardless, Appellant’s maximum sentence complaints are not
convincing. For instance, he claims his conduct was less serious than that normally
Case No. 20 MA 0131
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constituting rape and gross sexual imposition. However, the trial court could easily reject
such a contention as to victim B. The statutory seriousness factors discuss the age of
the victim, physical or mental injury, the relationship facilitating the offenses, mitigating
grounds or victim-inducement (and the lack thereof), and any other factor believed to be
relevant. R.C. 2929.12(B)-(C). Furthermore, recidivism was highly likely considering the
circumstances of this case and Appellant’s repeated grooming of juveniles (including this
14-year-old), such as by providing them with alcohol and tobacco and by allowing them
to sleep at his house (even though his children were not present) where they smoked
marijuana and drank alcohol. Appellant could be seen as failing to live a law-abiding life
and failing to exhibit genuine remorse for circumstances he continually created. See R.C.
2929.12 (D)(5),(E)(4) (recidivism factors plus any other relevant factor).
{¶104} These high recidivism concerns would likewise apply to the sentence for
the rape of victim A. In addition, Appellant’s contention that the allegations by victim A
are not very serious due to the initial consent need not be accepted by a sentencing court.
Appellant continued to perform painful anal sex on the 17-year-old for five to ten minutes
after being asked to stop multiple times while his arms were restrained and his body was
in an unfamiliar and submissive position. Victim A explained the incident seriously
affected his life. In any event, the aforementioned Supreme Court warned the appellate
judges shall not independently weigh the evidence in the record and substitute their
judgment for that of the trial court as to whether the sentence was appropriate under R.C.
2929.11 and 2929.12. Jones, 163 Ohio St.3d 242 at ¶ 38, 42.
{¶105} We turn to Appellant’s challenge of the trial court’s imposition of
consecutive sentences. “In order to impose consecutive terms of imprisonment, a trial
court is required to make the findings mandated by R.C. 2929.14(C)(4) at the sentencing
hearing and incorporate its findings into its sentencing entry, but it has no obligation to
state reasons to support its findings.” State v. Bonnell, 140 Ohio St.3d 209, 2014-Ohio-
3177, 16 N.E.3d 659, ¶ 37. Appellant agrees the court made the consecutive sentence
findings at the sentencing hearing and in the judgment entry as required. The court
utilized (C)(4)(b), which entails a finding:
that the consecutive service is necessary to protect the public from future
crime or to punish the offender and that consecutive sentences are not
Case No. 20 MA 0131
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disproportionate to the seriousness of the offender's conduct and to the
danger the offender poses to the public, and * * * (b) At least two of the
multiple offenses were committed as part of one or more courses of
conduct, and the harm caused by two or more of the multiple offenses
committed was so great or unusual that no single prison term for any of the
offenses committed as part of any of the courses of conduct adequately
reflects the seriousness of the offender's conduct.
R.C. 2929.14(C)(4)(b).
{¶106} Appellant argues the record does not support the findings, and this
argument is reviewable under R.C. 2953.08(G)(2)(a). Specifically, Appellant contests
whether consecutive sentences were proportionate to the seriousness of his conduct and
the danger he poses and whether the harm was sufficiently great or unusual.
{¶107} Notably, “the clear and convincing standard used by R.C. 2953.08(G)(2)
is written in the negative. It does not say that the trial judge must have clear and
convincing evidence to support its findings. Instead, it is the court of appeals that must
clearly and convincingly find that the record does not support the court's findings.” State
v. Perez, 7th Dist. Mahoning No. 21 MA 0058, 2022-Ohio-1124, ¶ 28, quoting State v.
Venes, 2013-Ohio-1891, 992 N.E.2d 453, ¶ 21 (8th Dist.). “In other words, the restriction
is on the appellate court, not the trial judge. This is an extremely deferential standard of
review.” Id.{¶108} We refer to our above discussion on seriousness and recidivism.
Appellant’s likelihood of recidivism relates to the danger he poses to the public, and the
conduct was serious. The court saw the rape victims testify. Victim A, who was only 17
years old during the offense, explained his drinking substantially increased after Appellant
held him down and refused to stop performing painful anal sex on him after he repeatedly
asked Appellant to stop. Victim B was only 14 years old when Appellant woke him by
holding him down and covering his mouth. Appellant then fondled him, performed oral
sex on him, and anally raped him while continuing to hold him down. Additionally, the
child-victims with their genitals graphically on display in the lewd photographs are
continuously exploited and harmed for years by people who collect such images. (We
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also note Appellant was only sentenced to two six-month terms, even though there were
more than two children in the photographs.)
{¶109} Contrary to Appellant’s contention, consecutive service is not
disproportionate to the seriousness and the danger he poses, and the record supports a
finding of harm so great or unusual that one prison term would not have adequately
reflected the seriousness of the conduct. This court concludes: We cannot clearly and
convincingly find the record fails to support the consecutive findings. This assignment of
error is overruled.
ASSIGNMENT OF ERROR FIVE: EFFECTIVENESS OF COUNSEL
{¶110} Appellant’s fifth and final assignment of error provides:
“APPELLANT’S COUNSEL WAS INEFFECTIVE.”
{¶111} A claim of ineffective assistance of counsel requires a showing of both
deficient performance and resulting prejudice. Strickland v. Washington, 466 U.S. 668,
687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). If the performance was not deficient, then
there is no need to review for prejudice and vice versa. See State v. Madrigal, 87 Ohio
St.3d 378, 389, 721 N.E.2d 52 (2000).
{¶112} In evaluating an alleged deficiency in performance, the court asks whether
there was “a substantial violation of any of defense counsel's essential duties to his client.”
State v. Bradley, 42 Ohio St.3d 136, 142, 538 N.E.2d 373 (1989). Our review is highly
deferential to counsel's decisions as there is a strong presumption counsel's conduct was
within the wide range of reasonable professional assistance. Id. at 142-143, (there are
“countless ways to provide effective assistance in any given case”), citing Strickland, 466
U.S. at 689, 104 S.Ct. 2052. A reviewing court should not second-guess the strategic
decisions of counsel. State v. Carter, 72 Ohio St.3d 545, 558, 651 N.E.2d 965 (1995).
{¶113} On the prejudice prong, a lawyer's errors must be so serious that there is
a reasonable probability the result of the proceedings would have been different. Carter,
72 Ohio St.3d at 558. Lesser tests of prejudice have been rejected: “It is not enough for
the defendant to show that the errors had some conceivable effect on the outcome of the
proceeding.” Bradley, 42 Ohio St.3d at 142, fn. 1, quoting Strickland, 466 U.S. at 693.
Prejudice from defective representation justifies reversal only where the results were
unreliable or the proceeding was fundamentally unfair due to the performance of trial
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counsel. Carter, 72 Ohio St.3d at 558, citing Lockhart v. Fretwell, 506 U.S. 364, 369, 113
S.Ct. 838, 122 L.Ed.2d 180 (1993).
{¶114} Appellant contends his trial counsel failed to thoroughly cross-examine
victim B, whose testimony resulted in a rape and a gross sexual imposition conviction.
This was the 14-year-old child who testified Appellant held him down, touched his penis,
performed oral sex on him, and then subjected him to anal sex while continuing to hold
him down. Appellant testified he masturbated the child with consent on April 16, 2016
and three subsequent times. In arguing victim B’s story lacked credibility under the weight
of the evidence assignment of error, Appellant pointed out victim B continued to
communicate with him in the year after the incident.
{¶115} Under this assignment of error, Appellant complains his attorney did not
impeach victim B while he was on the stand by asking about his subsequent
communications with Appellant. Specifically, Appellant points out victim B asked him for
a ride a year after the incident (not long before Appellant was arrested), citing “Attachment
D.” Appellant argues there was no strategic reason for refraining from impeaching victim
B with this evidence while he was on the stand. He claims this resulted in prejudice
because this child’s credibility was key to the rape in count two and the gross sexual
imposition in count three.
{¶116} The state argues the cited evidence is not in the record and thus cannot
be raised on direct appeal. See State v. Hartman, 93 Ohio St.3d 274, 299, 754 N.E.2d
1150 (2001) (if a claim of ineffective assistance of counsel requires proof from outside of
the record, then such claim is not appropriately considered on direct appeal); State v.
Ishmail, 54 Ohio St.2d 402, 406, 377 N.E.2d 500 (1978) (the appellate court is limited to
what transpired as reflected by the record on direct appeal). However, the appellate
record is not confined to the evidence introduced at trial; rather, the appellate court can
view other parts of the trial court’s record, including pre-trial filings and hearings.
{¶117} The suppression proceedings evaluated the probable cause for the
warrant. The affidavits used to support the search warrants for Appellant’s residences
and devices are part of the record of this case. They were attached to the suppression
motion and admitted as exhibits at the suppression hearing. (Supp.Tr. 80-82, 123; St.Ex.
4, 7). The affiant said the earlier Instagram warrant revealed communications between
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Appellant and victim B from April 2017, wherein the juvenile asked Appellant for products
and for a ride. (5/11/20 Aff. at ¶ 28) (using initials matching the first and last initial of the
juvenile in count two and three of the indictment). Therefore, even if “Attachment D” cited
by Appellant here was not part of the trial record, the information relied upon by Appellant
was essentially in the record in another form, the affidavit in support of the search warrant
at ¶ 28, which was cited by Appellant in the third assignment of error. Moreover, as
explained further below, there was testimony on the subject.
{¶118} Defense counsel asked victim B about his contact with Appellant after the
April 16, 2016 incident, initially inquiring whether victim B returned to Appellant’s house
after that night. Victim B answered in the negative and then started having a meltdown.
(Tr. 507). As can be seen throughout the testimony, victim B had a difficult and emotional
time testifying. (Tr. 450, 452, 455, 457-461). As mentioned again at sentencing, the
victim’s pain was apparently evident. (Sent.Tr. 15). Appellant’s own testimony about
victim B’s testimony noted: “I heard him crying. I heard the agony. I actually felt his pain,
but it didn’t happen. * * * he was clearly upset.” (Tr. 703). By the end of cross-
examination, victim B seemed to reach a breaking point, becoming angry and threatening
toward Appellant and defense counsel. It was understandable that defense counsel
backed off from pressing the victim on the topic. In fact, the state did not even conduct
redirect examination due to the victim’s deteriorating condition on the stand.
{¶119} Although Appellant complains counsel failed to adequately cover the
subject of their continued communication while victim B was testifying, counsel did elicit
this evidence from other witnesses. Defense counsel asked the investigating officer if
victim B was one of the juveniles Appellant provided with cigars in 2017, and the officer
answered in the affirmative and said there were messages showing victim B
communicated with Appellant at that time and for that purpose. (Tr. 599). Moreover,
Appellant testified victim B returned to his house soon after the incident (stating he
masturbated victim B again and on subsequent occasions). (Tr. 643-644). Appellant also
mentioned receiving friendly social media messages from victim B thereafter. (Tr. 700).
{¶120} Considering the totality of the circumstances, counsel’s performance was
not deficient. It was a strategic decision to avoid further questioning of victim B, who was
viewed as having the jury’s sympathy and who was starting to get angry. “The scope of
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cross-examination clearly falls within the ambit of trial strategy, and debatable trial tactics
do not establish ineffective assistance of counsel.” State v. Hoffner, 102 Ohio St.3d 358,
2004-Ohio-3430, 811 N.E.2d 48, ¶ 45.
{¶121} Moreover, reversible prejudice is lacking. The jury heard that victim B
participated in communicating with Appellant after the incident, even as recent as the
month prior to his May 2017 disclosure (which was a year after the incident). This did not
dissuade the jurors from assessing victim B as credible. Contrary to Appellant’s
suggestions, it was not incredible that a rape victim would continue to associate with his
assailant when the victim is a 14-year-old child who was groomed and being supplied
with illegal products, especially when his friends also participated in communicating with
Appellant. There is no indication the results were unreliable or the proceeding was
“fundamentally unfair” due to the performance of trial counsel on this issue. See Carter,
72 Ohio St.3d at 558. This assignment of error is overruled.
{¶122} For the foregoing reasons, Appellant’s assignments of error are overruled,
his convictions are upheld, and the trial court’s judgment is affirmed.
Donofrio, P J.,concurs.
Waite, J., concurs.
Case No. 20 MA 0131
[Cite as State v. Boyd, 2022-Ohio-3523.]
For the reasons stated in the Opinion rendered herein, the assignments of error
are overruled and Appellant’s convictions are upheld. It is the final judgment and order
of this Court that the judgment of the Court of Common Pleas of Mahoning County, Ohio,
is affirmed. Costs waived.
A certified copy of this opinion and judgment entry shall constitute the mandate in
this case pursuant to Rule 27 of the Rules of Appellate Procedure. It is ordered that a
certified copy be sent by the clerk to the trial court to carry this judgment into execution.
NOTICE TO COUNSEL
This document constitutes a final judgment entry.