Petition for Writ of Certiorari — Pedro Montalvo, Jr., Petitioner v. Ohio

APPENDIX

i

APPENDIX

TABLE OF CONTENTS

Appendix A Entry in the Supreme Court of Ohio

(December 12, 2018) . . . . . . . . . . . App. 1

Appendix B Opinion and Judgment Entry in the

Court of Appeals, Knox County, Ohio,

Fifth Appellate District

(August 6, 2018) . . . . . . . . . . . . . . App. 2

Appendix C Journal Entry in the Court of Common

Pleas, Knox County, Ohio

(November 4, 2016). . . . . . . . . . . App. 24

Appendix D Sentencing Entry in the Court of

Common Pleas, Knox County, Ohio

(December 20, 2016) . . . . . . . . . . App. 26

Appendix E Ohio Revised Code § 2907.322 . . App. 30

Appendix F Transcript Excerpts in the Court of

Common Pleas, Knox County, Ohio

(November 1, 2016). . . . . . . . . . . App. 33

App. 1

APPENDIX A

THE SUPREME COURT OF OHIO

Case No. 2018-1322

[Filed December 12, 2018]

_____________________

State of Ohio

)

)

v.

)

)

Pedro Montalvo, Jr. )

____________________ )

ENTRY

Upon consideration of the jurisdictional memoranda

filed in this case, the court declines to accept

jurisdiction of the appeal pursuant to S.Ct.Prac.R.

7.08(B)(4).

(Knox County Court of Appeals; No. 17 CA 000019)

/s/ Maureen O’Connor

Maureen O’Connor

Chief Justice

App. 2

APPENDIX B

COURT OF APPEALS

KNOX COUNTY, OHIO

FIFTH APPELLATE DISTRICT

Case No. 17 CA 000019

[Filed August 6, 2018]

___________________________

STATE OF OHIO

)

Plaintiff-Appellee

)

)

-vs)

)

PEDRO MONTALVO, JR. )

Defendant-Appellant

)

__________________________ )

JUDGES:

Hon. John W. Wise, P. J.

Hon. W. Scott Gwin, J.

Hon. Patricia A. Delaney, J.

OPINION

CHARACTER OF PROCEEDING:

Criminal Appeal from the Court of Common

Pleas, Case No. 15 CR11 0192

JUDGMENT:

Affirmed

App. 3

DATE OF JUDGMENT ENTRY:

APPEARANCES:

For Plaintiff-Appellee

CHARLES T. MCCONVILLE

PROSECUTING ATTORNEY

117 East High Street, Suite 234

Mount Vernon, Ohio 43050

For Defendant-Appellant

JARED C. ROBERTS

ONDREY & ROBERTS, LLC

6487 Ridge Road

Wadsworth, Ohio 44281

Wise, P. J.

{¶1} Defendant-Appellant Pedro Montalvo, Jr.,

appeals his conviction on eighteen (18) counts of

pandering sexually oriented matter involving a minor,

following a jury trial in the Knox County Common

Pleas Court.

{¶2} Appellee is the State of Ohio.

STATEMENT OF THE FACTS AND CASE

{¶3} The relevant procedural facts leading to this

appeal are as follows.

{¶4} The investigation into Appellant Pedro

Montalvo began on October 3, 2014, when Detective

Rick Steller was checking law enforcement software

which had downloaded child pornography from a

computer in Mount Vernon, Ohio. (T. at 134). Det.

App. 4

Steller is a member of the Grove City Police

Department, assigned to the Franklin County Internet

Crimes Against Children (ICAC) Task Force. (T. at

127-128). The file downloaded on October 3, 2014, was

titled “Sally 4YO to 8yo.rnpg.” (T. at 141). Det. Steller

testified at trial that he determined by viewing the file

that it contained child pornography. (T. 136).

{¶5} Detective Steller determined the Internet

Protocol address from which the file had been

downloaded, which was IP 184.57.52.51. (T. at 136). He

also determined based upon a Google search that the

IP address was owned by Time Warner Cable. (T. at

137). Based upon that knowledge, Det. Steller obtained

a subpoena from the Franklin County Municipal Court

for the subscriber information related to the IP

address. (T. at 136). Time Warner’s response indicated

that the subscriber for IP 184.57.52.51 was Pedro

Montalvo, located in Mount Vernon. (T. at 138). The

response also indicated that the Pedro Montalvo’s

address was 308 West Vine Street in Mount Vernon,

and that there were two phone numbers associated

with Montalvo’s account: (740) 358-5861 and (740)

358-0000. (T. at 153-154).

{¶6} Mount Vernon Police Det. Sgt. Beth Marti

testified that she was contacted by Det. Bumpus of the

ICAC task force, who provided her with information

about the initial investigation. (T. at 157-158). This

information included Montalvo’s name, address, IP

address, internet service provider, and telephone

number. (T. at 158-159). She investigated the home

address and found that Montalvo had a vehicle

registered to him at the address, and that he had been

App. 5

registered to vote there since 2011. (T. at 159-160). Det.

Bumpus also provided Det. Marti with a copy of the

downloaded file of child pornography, which she viewed

so that she could testify to its content. (T. at 160).

Based upon that information, Det. Marti obtained a

search warrant from the Mount Vernon Municipal

Court. (T.at 161).

{¶7} Det. Marti was part of the law enforcement

team that executed the warrant, a team that also

included Det. Bumpus and Special Agent Cameron

Bryant of Homeland Security. (T. at 162). When the

warrant was executed, there were three people present

at the residence: Robert and Wendy Bowden, and a

female named White Dove. (T. at 163). Those persons

identified Pedro Montalvo’s bedroom, wherein they

located two computers. (T. at 163, 166).

{¶8} Det. Marti testified that she informed the

resident the officers were there on a child pornography

investigation. (T. at 168). Resident Robert Bowden

emphatically denied looking at child pornography, and

provided the detectives with his cell phone and laptop

computer. These devices were examined and found to

contain no child pornography. (T. at 168).

{¶9} Detective Marti was the only witness who

personally met Pedro Montalvo. She identified

Montalvo based upon viewing his picture on law

enforcement databases and meeting with him at the

Knox County Jail. (T. at 169). In the course of that

testimony, Det. Marti stated that Montalvo declined to

make a statement. (T. at 169). This is the only

reference to his silence in the record. (See Transcript).

No objection was raised to this testimony. (T. at 169).

App. 6

Det. Marti then proceeded to identify the Defendant in

open court. (T. at 169).

{¶10} Special Agent Cameron Bryant of Homeland

Security Investigations also participated in the

execution of the search warrant at 308 W. Vine Street

in Mount Vernon on November 12, 2014. (T. at 177,

179). His role was to examine the computers for

evidence of child pornography. (T. at 182). When he

examined the HP Desktop computer belonging to Pedro

Montalvo, he recovered over 600 images of child

pornography, 70 + digital movies containing child

pornography and 197 images or videos that depicted

known victims of child pornography investigations. (T.

at 190). There was no argument that the child

pornography files charged in the indictment were found

on Appellant’s computer. The State of Ohio and

Appellant stipulated to the dates, titles, and the

content of the files containing images of minors

engaged in sexual activity. (T. at 194).

{¶11} As to the computer itself, Agent Bryant

testified that the HP desktop computer was password

protected. (T. at 196). The computer also contained a

file sharing program called Frostwire. (T. at 199).

{¶12} Special Agent Bryant testified that while he

never met Pedro Montalvo during his investigation, he

did leave several messages on Montalvo’s phone. (T. at

196). Agent Bryant stated that he received a return call

from (740) 358-5861 at 8:42 p.m. on November 17,

2014, while at home. (T. at 197). The caller identified

himself as Pedro Montalvo. Id. He acknowledged

receiving Bryant’s messages and stated that he learned

that he had been indicted. (T. at 197). He also stated

App. 7

that he was an over-the-road truck driver and was in

Wisconsin. (T. at 198). He admitted to having child

pornography on his home computer and that he used

Frostwire and BitTorrent to download child

pornography. (T. at 198-199). He stated he used

computer search terms including PTHC (preteen hard

core), PTSC (preteen soft core), 09YO for nine year old,

08YO, 05YO and 0YO. (T. at 199). He further stated

that when he used 0YO, he received videos of adult

men engaging in sexual conduct with babies. (T. at

199).

{¶13} On November 17, 2014, the Knox County

Grand Jury indicted Pedro Montalvo, Jr. on one count

of Pandering Sexually Oriented Material Involving a

Minor in violation of R.C. § 2907.322(A)(2), a felony of

the second degree. (See Indictment, Case No.

14CR11-0185). The matter was set for a change of plea

on May 19, 2015, but subsequently reset for trial after

a substitution of counsel on May 28, 2015.

{¶14} The State of Ohio moved to dismiss the case

without prejudice on August 26, 2015 and the motion

was granted on August 27, 2015.

{¶15} On November 3, 2015, the Knox County

Grand Jury re-indicted Pedro Montalvo, Jr. in Case No.

15CR11-019. The indictment included 18 counts. Count

One was a charge of Pandering Sexually Oriented

Material Involving a Minor in violation of R.C.

§2907.322(A)(2), a felony of the second degree. Counts

Two through Eighteen were all charges of Pandering

Sexually Oriented Material Involving a Minor in

violation of R.C. §2907.322(A)(5), felonies of the fourth

degree. (See Indictment, Case No. 15CR11-0192).

App. 8

{¶16} Other than discovery motions and a motion for

a bill of particulars, there were no pre-trial motions

filed by Appellant before the case proceeded to trial on

November 1-2, 2016.

{¶17} On November 2, 2016, following deliberations

after the conclusion of all evidence, the jury found

Appellant guilty on all counts.

{¶18} On December 16, 2016, the trial court

sentenced Appellant to serve seven (7) years of

imprisonment on Count One and seventeen (17)

months imprisonment on each count for Counts Two

through Eighteen. These sentences were ordered to run

concurrently. (Sent. Entry, Dec. 20, 2016).

{¶19} Appellant now appeals, raising the following

Assignments of Error:

ASSIGNMENTS OF ERROR

{¶20} “I. THE TRIAL COURT ERRED AND

VIOLATED APPELLANT MONTALVO’S

CONSTITUTIONAL RIGHT TO A COMPLETE,

MEANINGFUL DEFENSE WHEREIN THE TRIAL

COURT REFUSED TO ADMIT EVIDENCE THAT

MR. MONTALVO’S ROOMMATE HAD RECEIVED

CHILD PORNOGRAPHIC MATERIALS.

{¶21} “II. THE TRIAL COURT IMPERMISSIBLY

ALLOWED TEST IMO N Y REG ARD ING A

PURPORTED TELEPHONE CONVERSATION WITH

APPELLANT MONTALVO WHEREIN: (A) THE

INTRODUCTION OF THIS TESTIMONY WAS A

CLEAR VIOLATION OF THE MASSIAH RULE

RESULTING IN A VIOLATION OF APPELLANT

App. 9

MONTALVO’S CONSTITUTIONAL RIGHT TO

COUNSEL; (B) THE PURPORTED TELEPHONE

CALL LACKED THE NECESSARY INDICIA OF

RELIABILITY REQUIRED FOR THE

INTRODUCTION OF THIS EVIDENCE AND WAS

INADMISSIBLE HEARSAY.

{¶22} “III.

APPELLANT

MONTALVO’S

CONSTITUTIONAL RIGHT TO REMAIN SILENT

WAS VIOLATED WHEREAS THE PROSECUTION

ASKED QUESTIONS DESIGNED TO ELICIT

TESTIMONY ABOUT HIS INVOCATION OF HIS

CONSTITUTIONAL RIGHT TO REMAIN SILENT.

{¶23}

“IV.

R.C.

§

2907.322

IS

UNCONSTITUTIONALLY VAGUE AS IT DOES NOT

CONTAIN ANY SCIENTER REQUIREMENT FOR

THE DISSEMINATION OF PORNOGRAPHIC

MATERIAL.”

I.

{¶24} In his first Assignment of Error, Appellant

argues the trial court erred in excluding evidence that

Appellant’s roommate had received child pornographic

materials. We disagree.

{¶25} Appellant herein argues that he should have

been allowed to present testimony by the landlord that

she received an envelope which contained a printed

catalogue of child pornography addressed to

Appellant’s roommate, Robert Bowden. A proffer was

made that she would have testified that when Mr.

Bowden never returned to the apartment to collect his

mail, she opened the envelope and saw the catalogue

and its contents. (T. at 228-233).

App. 10

{¶26} Initially, we note the admission or exclusion

of relevant evidence rests in the sound discretion of the

trial court. State v. Sage (1987), 31 Ohio St.3d 173, 180,

510 N.E.2d 343. As a general rule, all relevant evidence

is admissible. Evid.R. 402; cf. Evid.R. 802. The term

“abuse of discretion” connotes more than an error of

law or judgment; it implies that the court’s attitude is

unreasonable, arbitrary, or unconscionable.

Wilmington Steel Products, Inc. v. Cleveland Elec.

Illum. Co. (1991), 60 Ohio St.3d 120, 122, 573 N.E.2d

622, 624. Absent an abuse of discretion resulting in

material prejudice to the defendant, a reviewing court

should be reluctant to interfere with a trial court’s

decision in this regard. State v. Sage (1987), 31 Ohio

St.3d 173, 180.

{¶27} The trial court refused to allow this line of

questioning under the “best evidence rule”.

Evid.R. 1002 provides, “To prove the content of

a writing, recording, or photograph, the original

writing, recording, or photograph is required, except

as otherwise provided in these rules or by statute

enacted by the General Assembly not in conflict

with a rule of the Supreme Court of Ohio.” Evid.R.

1004 provides exceptions to the requirement of the

admission of the original writing, recording or

photograph.

The original is not required, and other evidence

of the contents of a writing, recording, or

photograph is admissible if:

App. 11

(1) Originals lost or destroyed. All originals are

lost or have been destroyed, unless the proponent

lost or destroyed them in bad faith; or

***

{¶28} Here, the best evidence would have been the

envelope with its contents. However, the landlord

testified that she destroyed the envelope and its

contents. (T. at 229). Appellant argues that the original

was not required in this case because, although it was

destroyed by the landlord, she did not do so in bad faith

{¶29} Upon review, we find that while the package

may have been admissible under the best evidence

rule, the exclusion of same was harmless error. The

proffered testimony was that a plain white envelope,

with no return address, containing a catalogue of

pornographic videos, which included child pornographic

materials, was addressed and mailed to Robert Bowen,

but never received by Robert Bowen, sometime after he

moved out of the apartment in May, 2015. We do find

that the exclusion of testimony as to what an

unidentified person may have sent to Appellant’s

roommate after the time period of the investigation and

resulting charges in this matter materially prejudiced

Appellant. We do not find, based on the other evidence

presented at trial, that the outcome of the proceedings

would have been different.

{¶30} Appellant’s first assignment of error is

overruled.

App. 12

II.

{¶31} In his second Assignment of Error, Appellant

argues the trial court erred in allowing into evidence

testimony regarding a telephone conversation with

Appellant. We disagree.

{¶32} Appellant argues herein that the trial court

should not have allowed Special Agent Bryant to testify

that he received a return telephone call from Appellant

during which Appellant admitted to the allegations as

charged in the indictment. Appellant argues that

introduction of such evidence violated his Sixth

Amendment right to counsel as set forth in Massiah v.

United States, 377 U.S. 201, 8 S.Ct. 1199 (1964).

{¶33} “The Sixth Amendment right to counsel is

triggered ‘at or after the time that judicial proceedings

have been initiated * * * whether by way of formal

charge, preliminary hearing, indictment, information,

or arraignment.’ ” Fellers v. United States, 540 U.S.

519, 523, 124 S.Ct. 1019 (2004), quoting Brewer v.

Williams, 430 U.S. 387, 398, 97 S.Ct. 1232 (1977). The

United States Supreme Court has held that “an

accused is denied ‘the basic protections’ of the Sixth

Amendment ‘when there [is] used against him at his

trial evidence of his own incriminating words, which

* * * agents * * * deliberately elicited from him after he

had been indicted and in the absence of his counsel.’ ”

Fellers at 523, quoting Massiah v. United States, 377

U.S. 201, 206, 84 S.Ct. 1199 (1964). The United States

Supreme Court has also held that “if police initiate

interrogation after a defendant’s assertion, at an

arraignment or similar proceeding, of his right to

counsel, any waiver of the defendant’s right to counsel

App. 13

for that police-initiated interrogation is invalid.”

Michigan v. Jackson, 475 U.S. 625, 636, 106 S.Ct. 1404

(1986).

{¶34} “[T]he Sixth Amendment right to counsel may

be waived by a defendant, so long as relinquishment of

the right is voluntary, knowing, and intelligent.”

Montejo v. Louisiana, 556 U.S. 778, 786, 129 S.Ct.

2079, 2085 (2009). A defendant may waive his Sixth

Amendment right to counsel regardless of whether he

is already represented by counsel, and the decision to

waive “need not itself be counseled.” Id. In turn,

“[n]othing in the Sixth Amendment prevents a suspect

charged with a crime and represented by counsel from

voluntarily choosing, on his own, to speak with police

in the absence of an attorney.” Michigan v. Harvey, 494

U.S. 344, 352, 110 S.Ct. 1176 (1990). Therefore,

“[a]lthough a defendant may sometimes later regret his

decision to speak with police, the Sixth Amendment

does not disable a criminal defendant from exercising

his free will.” Id. at 353.

{¶35} Here, after a thorough review of the record,

we find it is clear that Appellant initiated the

conversation with Special Agent Bryant when he

returned the telephone call, thus indicating Appellant’s

statements to Agent Bryant were voluntary and

admissible against him at trial.

{¶36} Appellant, however, argues his purported

statements should have been excluded because he did

not explicitly waive his Sixth Amendment right to

counsel knowingly and intelligently before speaking to

Agent Bryant on the day in question. In support of this

claim, Appellant argues that the prosecution failed to

App. 14

present evidence that Agent Bryant gave Appellant any

Miranda warnings.

{¶37} The sole remedy for a Miranda violation is the

suppression of the evidence which was derived from the

violation. Bennett v. Passic (C.A.10, 1976), 545 F.2d

1260, 1263; see Miranda, supra, 384 U.S. at 479. A

criminal defendant is required to raise a Miranda

violation in a pretrial motion to suppress. State v.

Cornely (1978), 56 Ohio St.2d 1, 6. By failing to file a

motion to suppress before trial, Appellant waived any

Miranda error relating to the failure to suppress his

conversation with Agent Bryant. See State v. Moody

(1978), 55 Ohio St.2d 64, 66; State v. Sibert (1994), 98

Ohio App.3d 412, 429.

{¶38} Appellant also argues that the telephone call

lacked the necessary indicia of reliability required to be

admissible. The admission or exclusion of relevant

evidence rests within the sound discretion of the trial

court. State v. Sage (1987), 31 Ohio St.3d 173, 510

N.E.2d 343. Therefore, we will not disturb a trial

court’s evidentiary ruling unless we find said ruling to

be an abuse of discretion; i.e. unreasonable, arbitrary

or unconscionable and not merely an error of law or

judgment. State v. Adams (1980), 62 Ohio St.2d 151,

157, 404 N.E.2d 144.

{¶39} As a condition precedent to admissibility,

Evid.R. 901(A) requires authentication by “evidence

sufficient to support a finding that the matter in

question is what its proponent claims.” This is a low

threshold, “requiring only foundational evidence for the

trier of fact to conclude that the evidence is indeed

what the proponent claims it to be.” (Citations

App. 15

omitted.) State v. Dawson, 2d Dist. Greene No.

2009–CA–63, 2010–Ohio–3904, ¶ 13. “The testimony of

a witness with knowledge is sufficient authentication.”

Id., citing Evid.R. 901(B)(1).

{¶40} Evid.R. 901(B) (6) provides the following as an

illustration of authentication or identification

conforming with the requirements of this rule:

(6) Telephone Conversations. Telephone

conversations, by evidence that a call was made to

the number assigned at the time by the telephone

company to a particular person or business, if (a) in

the case of a person, circumstances, including

self-identification, show the person answering to be

the one called, or (b) in the case of a business, the

call was made to a place of business and the

conversation related to business reasonably

transacted over the telephone.

{¶41} “Rule 901(B)(4) contemplates that a caller

may be identified by the fact that the speech could only

have been uttered by him, under the circumstances. ‘A

letter or a voice over the telephone may be related to a

particular person by the very fact that the matters set

forth in the letter or the telephone conversation were

known peculiarly to a particular person.’ ” Id., quoting

1980 Staff Note, Evid.R. 901.

{¶42} Courts have also held that “ ‘[t]elephone

conversations are admitted where the identity of the

parties is “satisfactorily explained.” ’ ” State v.

Carr–Poindexter, 2d Dist. Montgomery No. 20197,

2005–Ohio–1571, ¶ 24, quoting State v. Williams, 64

Ohio App.2d 271, 274, 413 N.E.2d 1212 (8th Dist.1979).

App. 16

In Carr–Poindexter, we stressed that such testimony is

properly admitted “ ‘where there is a reasonable

showing, through testimony or other evidence, that the

witness placed or received a call as alleged, plus some

indication of the identity of the person spoken to.

“There is no fixed identification requirement for all

calls.” * * * “Each case has its own set of facts.” ’ ” Id.,

quoting State v. Vrona, 47 Ohio App.3d 145, 149, 547

N.E.2d 1189 (9th Dist.1988). These facts may be

established through either direct or circumstantial

evidence. Id., citing Williams at 274.

{¶43} Here, the call received by Agent Bryant was

initiated by Appellant. The call initiated from the

number associated with Appellant. (T. at 197). The

caller identified himself as Appellant Pedro Montalvo.

Id. The caller acknowledged receiving Agent Bryant’s

messages. Id. The caller also stated that he had

learned that he had just been indicted. Id. Agent

Bryant testified that he had left messages on

Appellant’s phone and that Appellant had been

indicted earlier that day. (T at 196). Additionally, the

caller also identified himself as being an over-the-road

truck driver. (T. at 198). Agent Bryant had learned

during his investigation that Appellant was a truck

driver. (T. at 197). The caller also admitted that he had

child pornography on his home computer, and that he

used Frostwire and BitTorrent to download such

pornography. (T. at 190, 198). Agent Bryant testified

that Appellant’s computer contained hundreds of files

containing child pornography, and that the Frostwire

program was also on Appellant’s computer. (T. at

198-199). Finally, the caller told Agent Bryant what

preferred search terms he used to find the child

App. 17

pornography, and most of the files found on Appellant’s

computer contained those search terms. (T. at 199).

{¶44} Taking all of the evidence into consideration,

we find no error. Specifically, the threshold test of

authentication was met, and the jury could decide the

weight to give the phone call. See State v. Harmon, 2d

Dist. Clark No. 2932, 1993 WL 55967, (Mar. 2, 1993)

(jury decides “how authentic an item of evidence is, and

* * * [gives] it weight accordingly”); State v. Isley, 9th

Dist. Summit No. 17485, 1996 WL 351154, *2 (June 26,

1996) (once judge decides “ ‘threshold test of

authentication has been met and submits the evidence

to the jury, the jury may reject the authenticity of the

evidence’ ”); State v. Taylor, 2d Dist. Miami No. 2005

CA 44, 2006–Ohio–6813, ¶ 30 (once court decides to

admit evidence, weight to be given is for trier of fact).

{¶45} As noted above, the threshold for

authenticating evidence is low and only requires

“sufficient foundational evidence * * *.” (Citation

omitted). State v. Young, 2d Dist. Montgomery No.

18874, 2002 WL 471846, *2 (Mar. 29, 2002). See also

State v. Moore, 2015–Ohio–1327, 30 N.E.3d 988, ¶ 18

(2d Dist.).

{¶46} For the above reasons, we overrule Appellant’s

second assignment of error.

III.

{¶47} In his third Assignment of Error, Appellant

argues that his constitutional right to remain silent

was violated. We disagree.

App. 18

{¶48} At trial, during her testimony, Detective Marti

stated that she advised Appellant of his Miranda rights

at the Knox County jail and that he subsequently

refused to make a statement. (T. at 169). No objection

was made to this testimony.

{¶49} Although this statement was not objected to in

the trial court, Appellant contends that such amounts

to plain error and the trial court’s failure to uphold his

constitutional right to remain silent constitutes

reversible error.

{¶50} Although a court will not generally consider

alleged errors that were not brought to the attention of

the trial court, Crim.R. 52(b) provides that the court

may consider such errors affecting substantial rights.

An alleged error constitutes plain error only if the error

is obvious and, but for the error, the outcome of the

trial clearly would have been different. State v.

Yarbrough, 95 Ohio St.3d 227, 2002-Ohio-2126, 767

N.E.2d 216, ¶ 108.

{¶51} Evidence submitted by the State regarding a

defendant’s exercise of his right to remain silent during

an interrogation violates the Due Process Clause of

both the state and federal constitutions. Doyle v. Ohio

(1976), 426 U.S. 610, 618, 96 S.Ct. 2240, 49 L.Ed.2d 91;

State v. Leach, 102 Ohio St.3d 135, 807 N.E.2d 335,

2004-Ohio-2147, ¶ 18. Nevertheless, the introduction of

evidence regarding a defendant’s decision to remain

silent does not constitute reversible error if, based on

the whole record, the evidence was harmless beyond

any reasonable doubt. State v. Zimmerman (1985), 18

Ohio St.3d 43, 45, 479 N.E.2d 862. The Ohio Supreme

Court has held that “[a] single comment by a police

App. 19

officer as to a suspect’s silence without any suggestion

that the jury infer guilt from the silence constitutes

harmless error.” State v. Treesh, 90 Ohio St.3d 460,

2001-Ohio-4, 739 N.E.2d 749; State v. Welch, 3d Dist.

No. 16-06-02, 2006-Ohio-6684, ¶ 10.

{¶52} Based on the specific facts before us, including

the overwhelming evidence of Appellant’s guilt of the

crimes, we do not find that the outcome of the trial

would have been different but for said error.

{¶53} Appellant’s third assignment of error is

overruled.

IV.

{¶54} In his fourth Assignment of Error, Appellant

argues R.C. §2907.322 is unconstitutionally vague. We

disagree.

{¶55} Appellant argues that the statute is

unconstitutionally vague because it does not include a

scienter requirement for dissemination of illicit

materials.

{¶56} When a statute is challenged under the

void-for-vagueness doctrine, “the court must determine

whether the enactment (1) provides sufficient notice of

its proscriptions to facilitate compliance by persons of

ordinary intelligence and (2) is specific enough to

prevent official arbitrariness or discrimination in its

enforcement.” Norwood v. Horney, 110 Ohio St.3d 353,

2006–Ohio–3799, ¶ 84, citing Kolender v. Lawson, 461

U.S. 352, 357, 103 S.Ct. 1855 (1983)

App. 20

{¶57} Upon review, we find that R.C. §2907.322

contains a “knowledge” requirement in the first part of

the statute, and imposes strict liability for the acts that

are prohibited. Specifically, R.C. §2907.322, as relevant

to the indictment in the present case, states that:

{¶58} “(A) No person, with knowledge of the

character of the material or performance involved,

shall do any of the following:

{¶59} “(1) Create, record, photograph, film, develop,

reproduce, or publish any material that shows a minor

participating or engaging in sexual activity,

masturbation, or bestiality * * *.”

{¶60} In a prosecution under R.C. §2907.322, the

trier of fact may “infer that a person in the material or

performance involved is a minor if the material or

performance, through its title, text, visual

representation, or otherwise, represents or depicts the

person as a minor.” R.C. §2907.322(B)(3).

{¶61} In the instant case, Appellant argues that

there is a possibility that a person could unknowingly

share information with other parties through “peer to

peer” computer networks. (Appellant’s brief at 24.)

{¶62} R.C. §2907.322 makes clear that “its

prohibitions apply to pornography depicting an actual

minor.” State v. Huffman, 165 Ohio App.3d 518,

2006–Ohio–1106, ¶ 31 (1st Dist.). It “leaves no

discretion for the application and enforcement of the

statute, describing with sufficient particularity what a

person must do to commit a violation.” Id.

App. 21

{¶63} The Huffman court determined the scienter

requirement in R.C. 2907.322, requiring a defendant to

have “knowledge of the character of the material or

performance involved,” eliminated any potential

vagueness claim. Id. at ¶ 33. See also State v. Kraft, 1st

Dist. No. C–060238, 2007–Ohio–2247, ¶ 44–45, quoting

Mishkin v. New York, 383 U.S. 502, 512, 86 S.Ct. 958

(1966) (concluding the scienter requirement in R.C.

2907.322 “requires evidence that the offender knew

that the image involved a real minor,” thus

demonstrating that “the focus of the statute is on the

‘calculated purvey[or]’ of child pornography”).

{¶64} In State v. Maxwell, 95 Ohio St.3d 254,

2002-Ohio-2121, 767 N.E.2d 242, the Ohio Supreme

Court held that the General Assembly plainly indicated

a purpose to impose strict liability when it explicitly set

forth a mental state in one part of a statutory section

defining a criminal offense, but not in another. In

Maxwell, a defendant who had downloaded obscene

images involving minors onto his computer argued that

although he knew that the images were obscene and

involved minors, he did not know that he was

downloading them from a computer system in another

state, which resulted in his importing the images into

Ohio. The court held that based upon the language in

the statute, the knowledge element of R.C.

§2907.321(A) applied only to “the character of the

material or performance involved,” and the absence of

any knowledge requirement relating to actual

importing of the material evidenced a plain intention to

impose strict liability for that act. Id. at ¶30. This

interpretation was supported by the General

App. 22

Assembly’s demonstrated history of assuming a “strong

stance” against sex-related acts involving minors. Id.

{¶65} In State v. Turner, 2nd District, Montgomery

No. 22777, 2008-Ohio-6836, the court examined both

R.C. §2907.321 (Pandering Obscenity Involving a

Minor) as well as R.C. §2907.322, the statute involved

in the case sub judice. The Turner court, in looking at

the scienter, or mens rea, element required, found that

the knowledge requirement applied to the character of

the material involved and that remainder of the statute

imposes strict liability.

{¶66} Upon review, we find Appellant’s argument

that R.C. §2907.322 is unconstitutionally vague lacks

merit.

{¶67} Appellant’s fourth assignment of error is

overruled.

{¶68} For the reasons stated in the foregoing

opinion, the judgment of the Court of Common Pleas,

Knox County, Ohio, is affirmed.

By: Wise, P. J.

Gwin, J., and

Delaney, J., concur.

/s/ John W. Wise

HON. JOHN W. WISE

/s/ W. Scott Gwin

HON. W. SCOTT GWIN

/s/ Patricia A. Delaney

HON. PATRICIA A. DELANEY

App. 23

IN THE COURT OF APPEALS FOR

KNOX COUNTY, OHIO

FIFTH APPELLATE DISTRICT

Case No. 17 CA 000019

[Filed August 6, 2018]

___________________________

STATE OF OHIO

)

Plaintiff-Appellee

)

)

-vs)

)

PEDRO MONTALVO, JR. )

Defendant-Appellant

)

__________________________ )

JUDGMENT ENTRY

For the reasons stated in our accompanying

Memorandum-Opinion, the judgment of the Court of

Common Pleas of Knox County, Ohio, is affirmed.

Costs are assessed to Appellant.

/s/ John W. Wise

HON. JOHN W. WISE

/s/ W. Scott Gwin

HON. W. SCOTT GWIN

/s/ Patricia A. Delaney

HON. PATRICIA A. DELANEY

App. 24

APPENDIX C

IN THE COURT OF COMMON PLEAS,

KNOX COUNTY, OHIO

Case No. 15CR11-0192

[Filed November 4, 2016]

___________________________

STATE OF OHIO

)

Plaintiff

)

)

-VS)

)

PEDRO MONTALVO, JR. )

Defendant

)

__________________________ )

JOURNAL ENTRY

This cause came before the Court on the 1st and 2nd

days of November, 2016, for purposes of a trial by jury.

The Court finds that the defendant is present in the

Courtroom with counsel, Phillip Lehmkuhl. The State

of Ohio is represented in the person of Charles T.

McConville, Knox County Prosecuting Attorney.

A jury was duly impaneled and thereafter returned

against the Defendant a verdict of guilty to the charges

of Pandering Sexually Oriented Matter Involving a

Minor, in violation of Section 2907.322(A)(1) of the

Revised Code of Ohio, a felony of the second degree as

contained within Count One of the Indictment; and

Pandering Sexually Oriented Matter Involving a

App. 25

Minor, in violation of Section 2907.322(A)(5) of the

Revised Code of Ohio, felonies of the fourth degree as

contained within Counts Two through Eighteen of the

Indictment.

It is the Order of the Court that the Defendant be

referred to the Adult Court Services Officer for a

presentence investigation pursuant to Rule 32.2(A) of

the Ohio Rules of Criminal Procedure.

The bond previously Ordered herein is continued.

/s/ Otho Eyster

Otho Eyster, Judge

SUBMITTED BY:

/s/ Charles T. McConville

Charles T. McConville (0082378)

Prosecuting Attorney

cc: Phillip Lehmkuhl

App. 26

APPENDIX D

IN THE COURT OF COMMON PLEAS,

KNOX COUNTY, OHIO

Case No. 15CR11-0192

[Filed December 20, 2016]

___________________________

STATE OF OHIO

)

Plaintiff

)

)

-vs)

)

PEDRO MONTALVO, JR. )

Defendant

)

__________________________ )

SENTENCING ENTRY

This matter came before the Court on December 16,

2016, for the purpose of imposition of sentence. The

defendant, Pedro Montalvo, Jr., is present in the

courtroom represented by counsel, Phillip D.

Lehmkuhl. The State of Ohio is present in the person

of Charles T. McConville, Knox County Prosecuting

Attorney.

On November 2, 2016, the Defendant, Pedro

Montalvo, Jr., was found guilty at Trial by Jury of one

count of Pandering Sexually Oriented Matter Involving

a Minor, in violation of Ohio Revised Code Section

2907.322(A)(1) and/or 2907.322(A)(2), a felony of the

second degree as contained within Count One of the

App. 27

Indictment; and seventeen counts of Pandering

Sexually Oriented Matter Involving a Minor, in

violation of Ohio Revised Code Section 2907.322(A)(5),

felonies of the fourth degree as contained within

Counts Two through Eighteen of the Indictment. The

Defendant having been found guilty, the Court ordered

a presentence investigation, and has reviewed the

results of the court ordered presentence investigation.

The Court afforded counsel an opportunity to speak

on behalf of the Defendant and also addressed the

Defendant and asked if the Defendant wished to make

a statement to the Court or present any information in

mitigation of punishment. The Court heard all that the

Defendant and his attorney had to say.

The Court has considered the purposes of felony

sentencing contained in Ohio Revised Code Section

2929.11.

The Court has considered the seriousness and

recidivism factors in Ohio Revised Code Section

2929.12. For the reasons stated and for other relevant

factors, the Court finds the Defendant’s conduct is

more serious than conduct normally constituting the

offenses the Defendant stands convicted of and that the

Defendant is not amenable to an available Community

Control Sanction and prison term is consistent with the

purposes of felony sentencing contained in Ohio

Revised Code Section 2929.11.

It is the sentence of the Court that the Defendant

serve a definite term of imprisonment of seven (7) years

on Count One and seventeen (17) months on each

count, Counts Two through Eighteen. All sentences are

App. 28

to be served concurrently. The Defendant is given 311

days jail time credit, along with future days while

awaiting transportation to the appropriate institution.

Pursuant to Ohio Revised Code Section 2950.01, the

Court classified the Defendant a Tier II Sex Offender.

The Defendant was advised of his right to appeal

his convictions pursuant to Criminal Rule 32, and the

Defendant acknowledged that he understood his

appellate rights.

The Defendant was notified that following his

release from prison he will serve a five (5) year term of

post-release control and was advised as to the possible

penalties that may be imposed for violating the terms

of the post-release control sanctions pursuant to Ohio

Revised Code Section 2967.28.

The Defendant is remanded to the custody of the

Knox County Sheriff and the Clerk of this Court is

ordered to prepare the necessary papers for the

conveyance of the Defendant to the Correction

Reception Center located in Orient, Ohio.

The bond previously ordered herein is canceled and

held for naught. The Defendant is ordered to pay the

costs of the proceedings.

IT IS SO ORDERED.

/s/ Otho Eyster

Otho Eyster, Judge

App. 29

SUBMITTED BY:

/s/ Charles T. McConville

Charles T. McConville (0082378)

Prosecuting Attorney

cc: Prosecuting Attorney

Defendant’s Attorney

Officer Joshua Gutridge

App. 30

APPENDIX E

Ohio Revised Code § 2907.322

Pandering sexually oriented

matter involving a minor

(A) No person, with knowledge of the character of the

material or performance involved, shall do any of the

following:

(1) Create, record, photograph, film, develop,

reproduce, or publish any material that shows a minor

participating or engaging in sexual activity,

masturbation, or bestiality;

(2) Advertise for sale or dissemination, sell, distribute,

transport, disseminate, exhibit, or display any material

that shows a minor participating or engaging in sexual

activity, masturbation, or bestiality;

(3) Create, direct, or produce a performance that shows

a minor participating or engaging in sexual activity,

masturbation, or bestiality;

(4) Advertise for presentation, present, or participate in

presenting a performance that shows a minor

participating or engaging in sexual activity,

masturbation, or bestiality;

(5) Knowingly solicit, receive, purchase, exchange,

possess, or control any material that shows a minor

participating or engaging in sexual activity,

masturbation, or bestiality;

App. 31

(6) Bring or cause to be brought into this state any

material that shows a minor participating or engaging

in sexual activity, masturbation, or bestiality, or bring,

cause to be brought, or finance the bringing of any

minor into or across this state with the intent that the

minor engage in sexual activity, masturbation, or

bestiality in a performance or for the purpose of

producing material containing a visual representation

depicting the minor engaged in sexual activity,

masturbation, or bestiality.

(B)(1) This section does not apply to any material or

performance that is sold, disseminated, displayed,

possessed, controlled, brought or caused to be brought

into this state, or presented for a bona fide medical,

scientific, educational, religious, governmental,

judicial, or other proper purpose, by or to a physician,

psychologist, sociologist, scientist, teacher, person

pursuing bona fide studies or research, librarian,

clergyman, prosecutor, judge, or other person having a

proper interest in the material or performance.

(2) Mistake of age is not a defense to a charge under

this section.

(3) In a prosecution under this section, the trier of fact

may infer that a person in the material or performance

involved is a minor if the material or performance,

through its title, text, visual representation, or

otherwise, represents or depicts the person as a minor.

(C) Whoever violates this section is guilty of pandering

sexually oriented matter involving a minor. Violation

of division (A)(1), (2), (3), (4), or (6) of this section is a

felony of the second degree. Violation of division (A)(5)

App. 32

of this section is a felony of the fourth degree. If the

offender previously has been convicted of or pleaded

guilty to a violation of this section or section 2907.321

or 2907.323 of the Revised Code, pandering sexually

oriented matter involving a minor in violation of

division (A)(5) of this section is a felony of the third

degree.

App. 33

APPENDIX F

IN THE COMMON PLEAS COURT OF

KNOX COUNTY, OHIO

CASE NO. 15CR11-0192

[Dated November 1, 2016]

___________________________

STATE OF OHIO

)

PLAINTIFF,

)

)

-VS)

)

PEDRO MONTALVO, JR. )

DEFENDANT,

)

__________________________ )

November 1, 2016

Vol. I

TRANSCRIPT OF PROCEEDINGS before the

Honorable Otho Eyster, Judge, taken by me, Donna D.

Chafins, Registered Professional Reporter, at the Knox

County Courthouse, 111 East High Street, Mount

Vernon, Ohio, on Tuesday, November 1, 2016,

beginning at 9:00 a.m.

App. 34

DONNA D. CHAFINS, RPR

Official Court Reporter

Knox County Common Pleas Court

111 East High Street

Mount Vernon, Ohio 43050

(740) 393-6779

DONNA D. CHAFINS, RPR, (419) 886-6648

[p.2]

APPEARANCES

ON BEHALF OF THE STATE OF OHIO:

Charles McConville

Knox County Prosecutor

117 East High Street

Mount Vernon, Ohio 43050

ON BEHALF OF THE DEFENDANT:

Phillip Lehmkuhl

Attorney At Law

101 North Mulberry Street

Mount Vernon, Ohio 43050

***

[p.227]

[Direct Examination of Jeanie Cennamo]

house. So I asked him -- I gave him a notice 30-day or

60-day notice if he would leave.

Q Okay. And did he leave?

A Yes.

App. 35

Q When?

A I think it was like May.

Q Of?

A 2015.

Q Okay. Now, after he left in May of 2015, did you

clean the building to rerent it?

A Oh, yes, I had to.

Q Did mail continue to arrive at that house addressed

to the previous occupants?

A Yes.

Q Did any -- did you have the forwarding address for

Robert Bowden?

A No.

Q Did any mail arrive after he left addressed to Robert

Bowden?

A Yes.

Q Was any of it in a plain white envelope addressed to

him?

A Yes.

Q What did you do with regard to that mail?

A Well, I -- the one that had an address, return

App. 36

[p.228]

address I returned. I just wrote on it return to sender.

Took it back to the post office.

Q What about the other one?

A The other one, no. I left it in my car a long time

hoping that maybe he would contact me and give me

my keys back. He had left some other stuff there and

he never -- he never did and it was in my car for a long

time.

Q Did you ever open it?

A Yes.

Q What did you find inside that plain white envelope?

MR. MCCONVILLE: Objection, Your Honor.

THE COURT: What’s the basis of the objection?

MR. MCCONVILLE: The basis of the·objection is

best evidence rule. Objection that the contents of a

writing or the best evidence of the contents of writing

or photograph are the writing, photograph itself.

Otherwise, it would be hearsay.

MR. LEHMKUHL: Your Honor, this is something

she viewed herself and if you would like I can lay the

foundation as to why she can bring it into court.

THE COURT: I’m going to sustain the objection.

BY MR. LEHMKUHL:

Q Were you able to contact Robert Bowden regarding

that envelope?

App. 37

A No.

[p.229]

Q Do you still have it?

A No.

Q Why not?

A I kept it in my car for a long time. I was cleaning

out my car and when I cleaned out my car, I just threw

it away. It was not something I wanted to leave in my

car.

Q Why not?

MR. MCCONVILLE: Objection, Your Honor.

THE COURT: Sustain the objection.

BY MR. LEHMKUHL:

Q Would your possession of that item be embarrassing

to you?

A Yes.

Q Why?

MR. MCCONVILLE: Objection.

THE COURT: Sustain the objection.

BY MR. LEHMKUHL:

Q Was it a catalog?

A Yes.

MR. MCCONVILLE: Objection.

App. 38

THE COURT: Counsel, different line of questioning.

That’s the last question I’m going to permit along those

lines.

MR. LEHMKUHL: Okay. Your Honor, would it be

[p.230]

permissible to make a proffer as to what her answer

would have been?

THE COURT: When the jury is gone.

MR. LEHMKUHL: All right. We’ll do it then. Thank

you. That’s all I have for this witness, Your Honor.

THE COURT: Cross-examine.

MR. MCCONVILLE: Thank you.

CROSS-EXAMINATION [of Jeanie Cennamo]

BY MR. MCCONVILLE:

Q Miss Cennamo, good afternoon. I’m Chip Mcconville

County Prosecutor. I have a couple of questions. I

recognize you have been sitting around. We’ll help you

get on your way.

You testified earlier that Mr. Montalvo was a tenant

of yours for many years?

A Yes.

Q You testified that he lived at 308 West Vine Street?

A Yes.

Q And you testified that he lived there in 2014?

App. 39

A Yes.

Q How long before that did he establish residence

there?

A He had been there for several years. He rented -***

[p.233]

No conversations, none yourselves nor with anyone

else about the case. I’ll see you tomorrow morning.

Thank you very much. You have been very patient.

--(Thereupon, the following proceedings took place out of

the presence of the jury.)

--[Proffer by Defense Counsel]

THE COURT: I have got two exhibits. Sit down,

folks, two Defendant’s Exhibits marked A, B.

MR. LEHMKUHL: A and B only, Your Honor. Move

the admission.

THE COURT: Objection?

MR. MCCONVILLE: No objection.

THE COURT: A and B will be admitted without

objection. Proceed to proffer.

MR. LEHMKUHL: Thank you, Your Honor. I

proffer that had Jeanie Cennamo been permitted to

testify to the contents of the white envelope addressed

App. 40

to her tenant Robert, she would have testified as

follows:

That the item within it was a catalog, the catalog

was of pornographic videos including child pornography

videos.

THE COURT: I don’t remember her testifying as to

whom that envelope was addressed to.

[p.234]

MR. LEHMKUHL: She did, Your Honor.

THE COURT: She did?

MR. LEHMKUHL: Yeah.

THE COURT: Who was it addressed, remember

that?

MR. LEHMKUHL: She mentioned two addressed to

Robert. One returned to sender. We got into the second

one, we weren’t allowed to finish the line of

questioning.

THE COURT: That’s the proffer. Anything else for

the record?

MR. MCCONVILLE: No, Your Honor. That’s it.

THE COURT: Folks, we are adjourned. Before you

guys leave, let me give you a copy of the jury

instructions to take with you. Dave, can you run two

copies before they get out of here?

--(Evening recess was taken.)

---