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

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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

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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

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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 242

at ¶ 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

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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

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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.