[Cite as State v. Duhamel, 2015-Ohio-3145.]
Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION No. 102346
STATE OF OHIO PLAINTIFF-APPELLEE
vs.
JASON DUHAMEL DEFENDANT-APPELLANT
JUDGMENT: AFFIRMED
Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-12-568965-A
BEFORE: E.T. Gallagher, J., Jones, P.J., and Blackmon, J.
RELEASED AND JOURNALIZED: August 6, 2015 ATTORNEY FOR APPELLANT
Dean M. Boland Boland Legal, L.L.C. 1475 Warren Road Unit 770724 Lakewood, Ohio 44107
ATTORNEYS FOR APPELLEE
Timothy J. McGinty Cuyahoga County Prosecutor
BY: Brett Kyker Holly Welsh Assistant Prosecuting Attorneys The Justice Center, 9th Floor 1200 Ontario Street Cleveland, Ohio 44113 EILEEN T. GALLAGHER, J.:
{¶1} Defendant-appellant, Jason Duhamel (“Duhamel”), appeals the denial of a
motion to suppress as well as his convictions and sentence. He assigns the following
errors for our review:
1. The court erred in denying Duhamel’s motion to suppress the statement extracted from him while in custody but in the absence of Miranda warnings.
2. The court erred in denying Duhamel’s Rule 29 motion.
3. The trial court erred in denying Duhamel additional funds for his computer forensics expert.
4. The jury’s verdict was against the manifest weight of the evidence.
5. The state’s evidence was insufficient to support a verdict of guilty on Counts 1-36 in the indictment.
6. The sentence in this matter was a violation of Duhamel’s Eighth Amendment protection against cruel and unusual punishment.
7. The imposition of costs and fines on Defendant-appellant was unconstitutional.
{¶2} We find no merit the appeal and affirm.
I. Facts and Procedural History
{¶3} Duhamel was charged with 37 sex-related offenses. Counts 1 through 35 of
the indictment, charged Duhamel with pandering sexually oriented matter involving a
minor in violation of R.C. 2907.322(A)(2) and 2907.322(A)(1). Counts 36 and 37
charged Duhamel with one count each of illegal use of minor in nudity-oriented material, in violation of R.C. 2907.323(A)(1), and possession of criminal tools, in violation of R.C.
2923.24(A). The charges resulted from a search of Duhamel’s home in which
investigators found digital files of child pornographic videos on his computer.
{¶4} In preparation for trial, Duhamel filed a motion requesting funds to retain an
expert computer examiner, and the court awarded him $2,500. A few months later,
Duhamel filed another motion requesting additional funds for his expert, and the court
awarded him another $1,000. Duhamel later filed a third motion requesting more money
for the expert but, this time, the trial court denied the motion.
{¶5} Duhamel also filed a motion to suppress evidence of any statements he made
to police during the search of his home. At a hearing on the motion, Investigator David
Frattare (“Frattare”) of the Cuyahoga County Prosecutor’s Office and the Ohio Internet
Crimes Against Children (“ICAC”) Task Force, testified about his investigation that led
to the search. Specifically, he identified an IP address suspected of sharing 66 files of
child pornography via the Ares peer-to-peer file sharing network. An IP address is a
string of numbers associated with the internet connection of a particular service provider.
(Tr. 44.) Frattare described it as the “street address for your internet service.” (Tr. 307.)
{¶6} File sharing networks allow program users to share files on their personal
computers with other program users. (Tr. 297-299.) The IP address Frattare identified
in this case was linked to a computer located in a residence on West 126th Street in
Cleveland, Ohio. Investigators connected directly to the suspect’s computer and
browsed numerous files with titles such as “Alicia 10 yo pthc little girl loves adult sex,” “10 yr boy with 12 yr girl bufing,” and “Johanna 9 yr swallows cum.” Investigators
downloaded two of the files, and confirmed that they both contained child pornography.
{¶7} Further investigation revealed that three adults lived in the house associated
with the IP address, but investigators did not know which of the adults was pandering the
pornography. Pursuant to a search warrant, 13 investigators searched Duhamel’s house
early one morning. Duhamel was the only adult in the home at the time of the search.
{¶8} Detective Jamie Bonnette (“Bonnette”), of the Cuyahoga County Sheriff’s
Office, interviewed Duhamel while other officers searched the house. A video recording
of the interview, which occurred at the dining room table, was played for the court and
made part of the record. Bonnette testified that before he posed any questions, he
advised Duhamel that he was not under arrest and that he was not required to answer any
questions if he did not want to. Throughout the interview, Bonnette reminded Duhamel
that he was not required to answer any questions. Yet, Duhamel spoke freely with police
and, at times, initiated conversation.
{¶9} After hearing the testimony and reviewing the video of the interview, the trial
court determined that because Duhamel was not in custody when he made statements to
police, Miranda warnings were not required. Accordingly, the court denied the motion
to suppress.
{¶10} The evidence presented at the suppression hearing was reintroduced for the
jury at trial. In addition, Frattare explained how individuals search for and download
files and described several popular search terms used to find child pornography. For example, the search term “PTHC” stands for “preteen hard-core,” and “9” combined with
the letters “yo” indicates “nine years old.” According to Frattare, child pornography files
generally contain descriptive titles and many titles expressly indicate that they contain
child pornography. (Tr. 429.)
{¶11} Duhamel admitted to Bonnette that he had files that he knew were illegal.
(Tr. 425.) Duhamel also told police that he had learned about the search term “raygold”
from a former coworker at Toys “R” Us, but stopped using it after three searches led to
inappropriate material involving nine-year-old girls. Duhamel denied using the search
terms “PTHC” or “pedo,” but knew that “pedo” was associated with child pornography.
{¶12} Duhamel told police that whenever he downloaded files from Ares, he
downloaded multiple files at once, transferred the downloaded files to folders on an
external hard drive, and sorted through them later. He denied looking at the downloaded
files before transferring them to the external hard drive. However, he advised Bonnette
that any questionable material on his devices would likely be found in either a folder
titled “finished” that was within a folder titled “other” on the external hard drive, or
within a folder titled “kid” or “young” that was within a folder called “movies.”
Duhamel told investigators that he generally did not keep downloaded files on his
computer.
{¶13} Investigator Jason Howell (“Howell”), of the Cuyahoga County Prosecutor’s
Office and the Ohio ICAC Task Force, testified that he performed on-scene forensic
scans of numerous digital devices in Duhamel’s home during the search in order to confiscate only those devices that contained child pornography. Investigators seized six
items from the residence: an HP USB drive, a Seagate external hard drive, a Toshiba
external hard drive, a Western Digital external hard drive, a Dell notebook computer, and
an Antech external hard drive. All of these items were found in Duhamel’s bedroom.
Howell bookmarked the files of child pornography on the devices wherever they were
found.
{¶14} Howell created a PowerPoint presentation containing the files he
bookmarked during his on-scene forensic examinations. Each slide of the presentation
corresponded to a separate count of the indictment and included the file, title, date the file
was created, and file pathway. A DVD containing the presentation was admitted into
evidence. As relevant to this appeal, the list of titles for each count in the Power Point
presentation was as follows:
Count 3 “-(sdpa) alicia 10 yo pthc little girl loves adult sex(2)(2)(2).avi” Count 4 “-(sdpa) mom - old sister and little kid – family sex pthc.mgp” Count 5 “!!!!! hot hot hot !!!! - 13y bondage.avi” Count 6 “(pthc) notta 9 yo girl & men.mpg” Count 7 “pthc-real dad & toddler daughter sex.wmx” Count 8 “tara 007 pthc jan 07 masterbation and penetration(2).mpg” Count 9 “delic video (4).wmv” Count 10 “! new ! (pthc) veronika nuevo 2 (11 yo) nenas-all(2).mpg” Count 11 “! new pthc dark studio fully.avi” Count 12 “((hussyfan)) pthc-colombia-girl-sexo infantil-desvergacion!avi” Count 13 “(pthc)(japanese loli) kikuko 10 y 12.avi” Count 14 “(pthc) boy mom 5.mpg” Count 15 “(pthc) brazil – 10 yr boy with 12 yr girl bufing 04-01-2005.mpg” Count 16 “(pthc) johanna 9 yr. swallows cum” slct.avi” Count 17 “(pthc) asian_loli.avi” Count 18 “(ptsc)-(unverified) 0 23 27.mpg” Count 19 “-(sdpa) alicia 10 yo pthc little girl loves adult sex(2)(2)(2).avi”1 Count 20 “-(sdpa) mom - old sister and little kid – family sex pthc.mgp” Count 21 “10 years old forced sex(2).mpg” Count 22 “8 yr orgasm and anal fuck hard! new! (Pthc) 2007 new girl img 0004(2).wmv” Count 23 “pthc – 7 yr lesbian twin sisters” Count 24 “pthc – open – euro family young sex education for very young girl.mpg” Count 25 “ptsc bella!!- (webcam) - 11 yo-girly avi - moscow-mafia- pthc-hussyfan-webcam-2006.avi” Count 26 “07 taboo – father and his daughter 9 y old.mpg” Count 27 “2009 webcam pt – xxcaliaxx2.avi” Count 28 “! ! ! new ! ! ! (pthc) linda - a little extra 217 avi - - (spda) linda - 10 anos mamando y tomando semen.avi” Count 29 “air.mpg” Count 30 “kley_full.mpg” Count 31 “$R26XWOW4.avi” Count 32 “$R6ZG1QL.mpg” Count 33 “$RIWVQPI.avi” Count 34 “$R1D03L4.mpg” Count 35 “$RXC7H3I.wmv” Count 36 “lolicon hentai girl nude.avi”
{¶15} Howell testified that Counts 5 through 8 and 10 through 26 were found in
the folder titled “kid” that was within the folder titled “movies,” on the Western Digital
external hard drive. Counts 9 through 27 were found in a folder titled “sex folder” that
was also located in the “movies” folder on the Western Digital external hard drive.
Counts 28 through 30 and 36 were found in another folder titled “kid” that was within a
folder titled “new folder” on the Western Digital external drive. The files represented in
1 This count involves the same video as the video in Count 3, but it was downloaded to two different devices. Counts 31 through 35 were found in the Windows recycle bin of the Dell notebook
{¶16} After the search, Howell conducted a more thorough forensic investigation
of the devices in a lab, where he discovered 20 more files of child pornography in
addition to comics and animated videos of children having sex. Howell testified that he
bookmarked 19 “thumbnails” of child pornography. He explained that a “thumbnail” is
“a still frame of, or an image of one frame of the video,” and that Duhamel must have
created the thumbnails by playing the video files on the computer. Howell described the
organization of the folders on Duhamel’s devices and stated that the file folders were
named “incest,” “lolicon bondage,” “rape,” “sex,” “furry,” “hentai,” “hottails,” “JAB
comic big collection,” “mom,” and “naruto.” Each folder contained additional folders
that corresponded to the name of the larger folder. For example, a folder titled
“cartoon,” contained animation, and the files found in the “kid” folder had titles
indicative of child pornography.
{¶17} Duhamel moved for acquittal pursuant to Crim.R. 29 after the state rested its
case. The court denied the motion and the case was submitted to the jury. The jury
found Duhamel guilty on Counts 3 through 8, 10 through 30, 36, and 37, and not guilty of
Counts 1, 2, 9, and 31 through 35. The court sentenced Duhamel to three years in prison
on Counts 3 and 4, to be served concurrently; four years in prison on Counts 5 through 8,
10 through 30, and 36, to be served concurrently; and one year in prison on Count 37.
However, the court ordered that the three-year sentence on Counts 3 and 4, the four-year sentence on Counts 5 through 8 and 10 through 27, the four-year sentence on Counts 28
and 29, and the four-year sentence on Counts 36 and 37, were to be served consecutively
for an aggregate 15-year prison term. This appeal followed.
II. Law and Analysis
A. Motion to Suppress
{¶18} In his first assignment of error, Duhamel argues the trial court erred in
denying his motion to suppress evidence of statements he made to police when they
executed the search warrant of his home. He contends the police should have given him
Miranda warnings before questioning him because, although he was not under arrest, he
was, for all intents and purposes, in police custody.
{¶19} Appellate review of a motion to suppress involves a mixed question of law
and fact. “In a motion to suppress, the trial court assumes the role of trier of fact and is
in the best position to resolve questions of fact and evaluate witness credibility.” State v.
Curry, 95 Ohio App.3d 93, 96, 641 N.E.2d 1172 (8th Dist.1994). The reviewing court
must accept the trial court’s findings of fact in ruling on a motion to suppress if the
findings are supported by competent, credible evidence. State v. Burnside, 100 Ohio
St.3d 152, 2003-Ohio-5372, 797 N.E.2d 71, ¶ 8. Accepting the facts as true, the
reviewing court must then independently determine as a matter of law, without deference
to the trial court’s conclusion, whether the facts meet the appropriate legal standard. Id.
{¶20} The Fifth Amendment to the U.S. Constitution provides that an individual
shall not “be compelled in any criminal case to be a witness against himself.” In Miranda v. Arizona, 384 U.S. 436, 444, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), the
United States Supreme Court applied the Fifth Amendment right against
self-incrimination to police interrogations of individuals in custody, and held:
[W]hen an individual is taken into custody or otherwise deprived of his freedom * * * in any significant way and is subjected to questioning, * * * [h]e must be warned prior to any questioning that he has the right to remain silent, that anything he says can be used against him in a court of law, that he has the right to the presence of an attorney, and that if he cannot afford an attorney one will be appointed for him prior to any questioning if he so desires. * * * [U]nless and until such warnings * * * are demonstrated by the prosecution at trial, no evidence obtained as a result of interrogation can be used against him.
Id. at 478-479.
{¶21} Miranda warnings are only required when the accused is subjected to
custodial interrogation. Id.; State v. Biros, 78 Ohio St.3d 426, 440, 678 N.E.2d 891
(1997). In determining whether police questioning constitutes “custodial interrogation”
for Miranda purposes, the inquiry is whether a reasonable person would feel free to leave
the interview under the totality of the circumstances presented at that time. Biros at id.
{¶22} However, the determination of what constitutes “custody” does not depend
on the subjective feelings of the accused or the subjective, unarticulated goals of police.
Berkemer v. McCarty, 468 U.S. 420, 442, 104 S.Ct. 3138, 82 L.Ed.2d 317 (1984); State v.
Hopfer, 112 Ohio App.3d 521, 545-546, 679 N.E.2d 321 (8th Dist.1996). The focus is
on the perception a reasonable person would have under the circumstances. Stansbury v.
California, 511 U.S. 318, 114 S.Ct. 1526, 128 L.Ed.2d 293 (1994). Indeed, “[t]he
ultimate inquiry is whether there is a ‘formal arrest or restraint on freedom of movement’ of the degree associated with a formal arrest.” California v. Beheler, 463 U.S. 1121,
1125, 103 S.Ct. 3517, 77 L.Ed.2d 1275 (1983). See also State v. Barnes, 25 Ohio St.3d
203, 207, 495 N.E.2d 922 (1986).
{¶23} Duhamel argues that a reasonable person in his position would have
believed his liberty was restrained to the same extent as a formal arrest because police
entered his home with guns drawn and prohibited him from calling his mother and from
going to his bedroom to retrieve a cough drop. However, Bonnette testified that prior to
posing any questions, he informed Duhamel that he was not under arrest. Bonnette also
testified, and the video of the interview shows, that Bonnette reminded Duhamel several
times that he did not have to answer any questions if he did not want to.
{¶24} Moreover, there was nothing accusatorial about the interview. There were
no threats, nor were the police overbearing. The video of the interview shows that the
tenor of the conversation was nonthreatening. Duhamel was never handcuffed and
police spoke in a casual manner. Duhamel did not appear overly nervous and initiated
the conversation at times. Miranda does not affect the admissibility of “volunteered
statements of any kind.” Miranda at 478.
{¶25} Although the officers refused to allow Duhamel to go to his bedroom to get
a cough drop, 13 police officers were searching the house at the time. Under these
circumstances, a reasonable person would conclude that while he was not under arrest, he
could not go to the bedroom because his presence would interfere with police business.
Bonnette testified they refused to permit Duhamel to go to his bedroom because they thought he might try to hide something they were looking for. The police were also
concerned for everyone’s safety.
{¶26} Because Duhamel was not subject to custodial interrogation and his
statements to police were voluntary, the officers were not required to give Duhamel
Miranda warnings before speaking with him during the search of his home.
{¶27} The first assignment of error is overruled.
B. Sufficiency and Manifest Weight of the Evidence
{¶28} In the second and fifth assigned errors, Duhamel argues his convictions are
not sustained by sufficient evidence. In the fourth assignment of error, Duhamel argues
his convictions are against the manifest weight of the evidence because there was no
evidence that Duhamel had “knowledge of the character of the material or performance
involved” in any of the downloaded files listed in the indictment.
{¶29} Although the terms “sufficiency” and “weight” of the evidence are
“quantitatively and qualitatively different,” we address these issues together because they
are closely related, while applying the distinct standards of review to Duhamel’s
arguments. State v. Thompkins, 78 Ohio St.3d 380, 386, 678 N.E.2d 541 (1997).
{¶30} The test for sufficiency requires a determination of whether the prosecution
met its burden of production at trial. State v. Bowden, 8th Dist. Cuyahoga No. 92266,
2009-Ohio-3598, ¶ 12. The relevant inquiry is whether, after viewing the evidence in a
light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt. State v. Jenks, 61
Ohio St.3d 259, 574 N.E.2d 492 (1991), paragraph two of the syllabus.
{¶31} In contrast to sufficiency, “weight of the evidence involves the inclination of
the greater amount of credible evidence.” Thompkins at 387. While “sufficiency of the
evidence is a test of adequacy as to whether the evidence is legally sufficient to support a
verdict as a matter of law, * * * weight of the evidence addresses the evidence’s effect of
inducing belief.” State v. Wilson, 113 Ohio St.3d 382, 2007-Ohio-2202, 865 N.E.2d
1264, ¶ 25, citing Thompkins at 386-387. “In other words, a reviewing court asks whose
evidence is more persuasive — the state’s or the defendant’s?” Id. The reviewing
court must consider all the evidence in the record, the reasonable inferences, and the
credibility of the witnesses to determine “‘whether in resolving conflicts in the evidence,
the jury clearly lost its way and created such a manifest miscarriage of justice that the
conviction must be reversed and a new trial ordered.’” Thompkins at 387, quoting State
v. Martin, 20 Ohio App.3d 172, 485 N.E.2d 717 (1st Dist.1983).
{¶32} Duhamel was charged with pandering sexually oriented material involving a
minor, in violation of R.C. 2907.322(A)(1), and illegal use of a minor, in violation of
R.C. 2907.323(A)(1). R.C. 2907.322 provides, in relevant part:
(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; R.C. 2907.323(A)(1) provides that no person shall “create * * * or transfer any material
or performance that shows the minor in a state of nudity.”
{¶33} Duhamel argues there was no evidence that he knew any of the 36 files
referenced in the indictment contained child pornography. In support of his argument,
he cites the testimony of Detectives Frattare and Howell, who stated that an Ares user
cannot determine the contents of a file with certainty before downloading it because files
cannot be opened until after they have been downloaded.
{¶34} Howell admitted on cross-examination that Duhamel’s files, alone, do not
contain reliable evidence of dates and times on which the files were opened or that they
were ever opened by Duhamel’s family computer or its Windows 7 operating system.
(Tr. 584.) Howell further admitted that file names do not necessarily represent the
contents of a file accurately. When asked if he would be comfortable testifying under
oath that he “knows the character of the material or performance in the file just by
looking at the file name,” he replied: “No, not by the file name.” Therefore, Duhamel
argues, it was impossible for him to have had knowledge of the character of the material
or performance of any of his files until after the act of pandering was committed by
downloading the files.
{¶35} However, circumstantial evidence belies Duhamel’s claimed ignorance. In
the video of the search of Duhamel’s home, Duhamel is seen explaining to police where
child pornography may be found. Duhamel also admitted he was familiar with certain
search terms that locate child pornographic files. He explained that the search term “pthc” refers to “preteen hardcore,” and that “raygold” refers to pornographic material
involving nine-year old girls. The video shows that Duhamel had both knowledge and
experience locating child pornography.
{¶36} R.C. 2901.22(B) defines “knowledge,” and states, in relevant part, that
[a] person has knowledge of circumstances when the person is aware that such circumstances probably exist. When knowledge of the existence of a particular fact is an element of an offense, such knowledge is established if a person subjectively believes that there is a high probability of its existence and fails to make inquiry or acts with a conscious purpose to avoid learning the fact.
(Emphasis added.) Thus, to have knowledge, a person need only believe that certain
circumstances probably exist, not that they exist with 100% certainty. Howell
testified that child pornographic files generally have descriptive titles, such as “-(sdpa)
alicia 10 yo pthc little girl loves adult sex(2)(2)(2).avi,” and sometimes include icon-type
pictures illustrating the subject of the files. (Tr. 449.) A person viewing the files sees
the titles and images before he downloads them.
{¶37} The jury returned guilty findings only on those counts where the file had a
descriptive title that described the file’s contents and acquitted him of all counts related to
files with non-descriptive titles. The jury’s findings comport with the statutory
definition of “knowledge” because the file titles indicated they likely contained child
pornographic material. They also included specific search terms with which Duhamel
was familiar.
{¶38} Further, the jury found that Duhamel possessed at least 28 files of child
pornographic material. Possession of such a large number of downloaded child pornography files cannot be a coincidence, especially since most of the files had titles
indicative of child pornography. Duhamel transferred the files to external hard drives
and saved them in separate folders that he categorized and named according to the type of
files contained therein. Many of the same files were saved on more than one hard drive.
The fact that Duhamel categorized a large number of pornographic files into separate
folders further demonstrates his knowledge of the material.
{¶39} Moreover, Duhamel confessed to police during the execution of the search
warrant that he possessed illegal files. This confession shows he had knowledge of the
contents of his files. (Tr. 425.) Therefore, there was sufficient evidence that Duhamel
knew he was downloading child pornographic material when he downloaded the files,
and Duhamel’s convictions were not against the manifest weight of the evidence, and the
evidence was sufficient to support them.
{¶40} Accordingly, the second, fourth, and fifth assignments of error are
overruled.
C. Additional Funds for Expert
{¶41} In the third assignment of error, Duhamel argues the trial court erred in
denying his third request for funds to pay his expert witness.
{¶42} We review the trial court’s denial of a motion for funds to obtain an expert
witness for an abuse of discretion. State v. Mason, 82 Ohio St.3d 144, 150, 694 N.E.2d
932 (1998). An abuse of discretion connotes that the trial court’s attitude was unreasonable, arbitrary, or unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d 217,
219, 450 N.E.2d 1140 (1983).
{¶43} In Mason, the Ohio Supreme Court held that
due process * * * requires that an indigent criminal defendant be provided funds to obtain expert assistance at state expense only where the trial court finds, in the exercise of a sound discretion, that the defendant has made a particularized showing (1) of a reasonable probability that the requested expert would aid in his defense, and (2) that denial of the requested expert assistance would result in an unfair trial.
Mason at 150. (Emphasis added.) Thus, according to Mason, only indigent criminal
defendants are entitled to state funds to retain an expert, and only if certain conditions are
met.
{¶44} The trial court did not find Duhamel indigent, and no affidavit of indigency
was filed at the time the court denied Duhamel’s third request for additional funds to pay
his expert. Without a finding of indigency, Duhamel was not entitled to any state funds.
Id., see also State v. Wagner, 5th Dist. Licking No. 03 CA 82, 2004-Ohio-3941, ¶ 28.
{¶45} Furthermore, the trial court awarded Duhamel $3,500 for an expert even
though he was not indigent. Duhamel has not demonstrated that the court’s denial of
additional funds deprived him of a fair trial. Therefore, we cannot say that the trial court
abused its discretion when it denied Duhamel’s request for more funds.
{¶46} The third assignment of error is overruled.
D. Cruel and Unusual Punishment {¶47} In the sixth assignment of error, Duhamel argues the consecutive sentence
he received violates his Eighth Amendment protection against cruel and unusual
punishment.
{¶48} R.C. 2953.08(G)(2) provides that an appellate court may reverse, vacate, or
modify a consecutive sentence if (1) the sentence is “otherwise contrary to law” or (2) the
appellate court, upon its review, clearly and convincingly finds that the record does not
support the sentencing court’s findings under R.C. 2929.14(C)(4). Obviously, an
unconstitutional sentence is contrary to law.
{¶49} The Eighth Amendment’s prohibition on “cruel and unusual punishments”
requires that the punishment for a crime be proportionate to the offense. Weems v. U.S.,
217 U.S. 349, 367, 30 S.Ct. 544, 54 L.Ed. 793 (1910). “‘[C]ases in which cruel and
unusual punishments have been found are limited to those involving sanctions which
under the circumstances would be considered shocking to any reasonable person.’”
State v. Weitbrecht, 86 Ohio St.3d 368, 371, 715 N.E.2d 167 (1999), quoting McDougle
v. Maxwell, 1 Ohio St.2d 68, 69, 203 N.E.2d 334 (1964). “‘[A]s a general rule, a
sentence that falls within the terms of a valid statute cannot amount to a cruel and unusual
punishment.’” State v. Hairston, 118 Ohio St.3d 289, 2008-Ohio-2338, 888 N.E.2d
1073, ¶ 21, quoting McDougle.
{¶50} Duhamel does not argue that any of his individual sentences exceed the
statutory range for his convictions. He argues his sentence is cruel and unusual because the trial court erroneously ordered consecutive prison terms and failed to merge allied
offenses.
1. Consecutive Sentences
{¶51} There is a presumption in Ohio that prison sentences should be served
concurrently, unless the trial court makes the findings outlined in R.C. 2929.14(C)(4) to
justify the imposition of consecutive sentences. R.C. 2929.41(A). R.C. 2929.14(C)(4)
requires the court to find that (1) consecutive sentences are necessary to protect the public
from future crime or to punish the offender, (2) consecutive sentences are not
disproportionate to the seriousness of the offender’s conduct and to the danger the
offender poses to the public, and (3) at least one of the three findings set forth in R.C.
2929.14(C)(4)(a)-(c) applies. As relevant here, R.C. 2929.14(C)(4)(b) provides as a
finding that the court consider whether
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 so 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.
{¶52} In State v. Bonnell, 140 Ohio St.3d 209, 2014-Ohio-3177, 16 N.E.3d 659, ¶
29, the Ohio Supreme Court held that
a word-for-word recitation of the language of the statute is not required, and as long as the reviewing court can discern that the trial court engaged in the correct analysis and can determine that the record contains evidence to support the findings, consecutive sentences should be upheld.
The failure to make the findings, however, is “contrary to law.” Id. at ¶ 37. {¶53} At the sentencing hearing, the trial court expressly found that “a prison
sentence is consistent with the rules and principles” of sentencing. In imposing the
consecutive sentences, the trial court stated, in relevant part:
I believe consecutive sentences are necessary to protect the public from future crimes and to punish you. They’re not disproportionate to the seriousness of [your] conduct and danger you pose.
I do find that this was part of a course of conduct inasmuch as, again, as I indicated, happened on June 10th, June 24th, June 25th, June 29th, July 1st. So, I feel that these are appropriate, necessary sentences.
(Tr. 859.) Thus, the trial court made all the findings necessary for the imposition of
consecutive sentences.
{¶54} Furthermore, the record supports the court’s findings. In New York v.
Ferber, 458 U.S. 747, 102 S.Ct. 3348, 73 L.Ed.2d 1113 (1982), the U.S. Supreme Court
recognized the government’s interest in safeguarding the physical and psychological
well-being of children and in preventing their sexual exploitation. Id. at 756-757.
Every video or image of child pornography on the internet constitutes a permanent record
of that particular child’s sexual abuse. The harm caused by these videos is exacerbated
by their circulation. Id. The videos in Duhamel’s library show eight, nine, and
ten-year old girls being vaginally raped by adult men. Adult men are seen
video-recording and photographing young girls while they are being molested, raped, and
abused.
{¶55} These videos are far worse than solitary photographs of naked children,
which are themselves harmful to the child victims. Duhamel downloaded the videos at different times as part of a course of conduct. Therefore, the record supports the court’s
finding that consecutive sentences are proportionate to the seriousness of Duhamel’s
crimes, are necessary to punish Duhamel for his multiple downloads of child
pornographic material, and to protect the public.
2. Allied Offenses
{¶56} Duhamel argues his sentence is cruel and unusual because the trial court
erred in failing to merge allied offenses of similar import.
{¶57} “R.C. 2941.25 codifies the protections of the Double Jeopardy Clause of the
Fifth Amendment to the United States Constitution and Section 10, Article I of the Ohio
Constitution, which prohibits multiple punishments for the same offense.” State v.
Underwood, 124 Ohio St.3d 365, 2010-Ohio-1, 922 N.E.2d 923, ¶ 23. Under R.C.
2941.25(A), when the same conduct by the defendant “can be construed to constitute two
or more allied offenses of similar import, the indictment or information may contain
counts for all such offenses, but the defendant may be convicted of only one.” However,
R.C. 2941.25(B) provides
Where the defendant’s conduct constitutes two or more offenses of
dissimilar import, or where his conduct results in two or more offenses of
the same or similar kind committed separately or with a separate animus as
to each, the indictment or information may contain counts for all such
offenses, and the defendant may be convicted of all of them. {¶58} The Ohio Supreme Court recently clarified the test courts should employ
when deciding whether two or more offenses are allied offenses that merge into a single
conviction under R.C. 2941.25 in State v. Ruff, Slip Opinion No. 2015-Ohio-995, ¶ 25.
In Ruff, the court stated that its decision in State v. Johnson, 128 Ohio St.3d 153,
2010-Ohio-6314, 942 N.E.2d 1061, which directed courts to focus on the defendant’s
conduct when evaluating whether offenses are allied, was “incomplete.” Id. at ¶ 16.
{¶59} In accordance with Johnson, the Ruff court maintained that when
determining whether there are allied offenses that merge into a single conviction, the
court must first examine the defendant’s conduct. Ruff at ¶ 25. The court further held
that multiple offenses do not merge if (1) the offenses are dissimilar in import or
significance, (2) the offenses were committed separately, or (3) the offenses were
committed with separate animus or motivation. Id. at syllabus. With respect to the first
factor, the court explained that two or more offenses are dissimilar within the meaning of
R.C. 2941.25(B) “when the defendant’s conduct constitutes offenses involving separate
victims or if the harm that results from each offense is separate and identifiable.” Id. at
syllabus.
{¶60} This court has previously held that “multiple convictions are allowed for
each individual image because a separate animus exists every time a separate image or
file is downloaded and saved.” State v. Mannarino, 8th Dist. Cuyahoga No. 98727,
2013-Ohio-1795, ¶ 53. Although the defendant may have obtained images around the
same time, the acquisition of each file constitutes a new and distinct crime because the “mere fact that the crimes occurred in quick succession does not mean that they were not
committed separately or with separate animus.” State v. Eal, 10th Dist. Franklin No.
11AP-460, 2012-Ohio-1373, ¶ 93. The selection of each individual video or image is a
separate decision.
{¶61} Moreover, the children depicted in the images or videos are the victims of
pandering sexually oriented material involving a minor offenses. State v. Meadows, 28
Ohio St.3d 43, 49, 503 N.E.2d 697 (1986). Each video presents a different child or
group of children. Individuals who view or circulate child pornography harm the child
in several ways (1) by perpetuating the abuse initiated by the creator of the material, (2)
by invading the child’s privacy, and (3) by providing an economic motive for producers
of child pornography. U.S. v. Norris, 159 F.3d 926 (5th Cir.1998). As previously
stated, the dissemination of child pornography exacerbates and continues the exploitation
and victimization of the individual child. Ferber, 458 U.S. 747 at 759, 102 S.Ct. 3348,
73 L.Ed.2d 1113; See also U.S. v. Sherman, 268 F.3d 539, 545 (7th Cir.2001) (even a
“passive consumer who merely receives or possesses the images directly contributes to
this continuing victimization.”).
{¶62} Therefore, Duhamel’s convictions were not allied offenses of similar import
because he downloaded each file of child pornography with a separate animus, and each
downloaded file was a crime against a separate victim or victims.
{¶63} Duhamel’s sentence is not cruel or unusual. The sentence falls within the
statutory range, the trial court made all the required statutory findings for the imposition of consecutive sentences, and none of Duhamel’s convictions were allied offenses of
similar import.
{¶64} Accordingly, the sixth assignment of error is overruled.
E. Costs and Fines
{¶65} In the seventh assignment of error, Duhamel argues the trial court’s
imposition of fines and court costs was unconstitutional because he is indigent. He
contends the collection methods used by the Ohio Department of Rehabilitation and
Correction violate his constitutional right to Equal Protection.
{¶66} The Equal Protection Clause of the Fourteenth Amendment to the U.S.
Constitution provides that “[n]o State shall * * * deny to any person within its jurisdiction
the equal protection of the laws.” Ohio’s Equal Protection Clause, Article I, Section 2 of
the Ohio Constitution, similarly states that “[a]ll political power is inherent in the people.
Government is instituted for their equal protection and benefit.”
{¶67} Thus, the guaranty of equal protection prevents the government from
treating people differently under its laws on an arbitrary basis. Harper v. Virginia State
Bd. of Elections, 383 U.S. 663, 681, 86 S.Ct. 1079, 16 L.Ed.2d 169 (1966) (Harlan, J.,
dissenting). The equal protection provisions of the Ohio and U.S. Constitutions are
functionally equivalent and are subject to the same analysis. State v. Thompson, 95 Ohio
St.3d 264, 2002-Ohio-2124, 767 N.E.2d 251, ¶ 11, citing Am. Assn. of Univ. Professors,
Cent. State Univ. Chapter v. Cent. State Univ., 87 Ohio St.3d 55, 59, 717 N.E.2d 286
(1999). {¶68} Courts apply varying levels of scrutiny to equal protection claims depending
on the rights at issue and the alleged discriminatory classifications created by the law.
Pickaway Cty. Skilled Gaming, L.L.C. v. Cordray, 127 Ohio St.3d 104, 2010-Ohio-4908,
936 N.E.2d 944, ¶ 18. Statutes involving fundamental rights, or that make
classifications based upon a suspect class, are subject to strict scrutiny. Thompson at ¶
13. Suspect classes have traditionally been defined as classifications based on race, sex,
religion, and national origin. Adamsky v. Buckeye Local School Dist., 73 Ohio St.3d
360, 362, 653 N.E.2d 212 (1995). Recognized fundamental rights include the right to
vote, the right of interstate travel, rights guaranteed by the First Amendment to the U.S.
Constitution, the right to procreate, and other rights of a uniquely personal nature.
Massachusetts Bd. of Retirement v. Murgia, 427 U.S. 307, 313, 96 S.Ct. 2562, 49 L.Ed.
2d 520 (1976).
{¶69} In this case, Duhamel challenges his classification as an indigent prisoner.
Indigent prisoners do not belong to any traditionally defined suspect class. Further,
Duhamel does not argue that the collection of court costs and fines from his prison
account violates a fundamental right. Where a statute or regulation involves neither a
suspect class nor a fundamental right, it comports with equal protection if it is rationally
related to a legitimate government interest. Menefee v. Queen City Metro, 49 Ohio St.3d
27, 29, 550 N.E.2d 181 (1990); Brooks v. Ohio Bd. of Embalmers & Funeral Dirs., 69
Ohio App.3d 568, 573, 591 N.E.2d 301 (10th Dist.1990) (holding that an administrative regulation is constitutional if it bears a rational relationship to a legitimate governmental
interest.).
{¶70} Ohio Adm.Code 5120-5-03(D) authorizes the garnishment of an inmate’s
account to satisfy the inmate’s obligations to the court as long as the account retains $25
for inmate expenditures. 2 Duhamel argues this regulation violates equal protection
because it deprives indigent inmates of the gifts deposited into their prison accounts by
family and friends.
{¶71} “‘[C]osts are taxed against certain litigants for the purpose of lightening the
burden on taxpayers financing the court system.’” State v. Threatt, 108 Ohio St.3d 277,
2006-Ohio-905, 843 N.E.2d 164, ¶ 14, quoting Strattman v. Studt, 20 Ohio St.2d 95, 102,
253 N.E.2d 749 (1969). “Although costs in criminal cases are assessed at sentencing
and are included in the sentencing entry, costs are not punishment, but are more akin to a
civil judgment for money.” Id. Thus, the purpose of Ohio Adm. Code 5120-5-03 is the
collection of a valid judgment to relieve the burden taxpayers would have to pay as a
result of the convict’s criminal actions. Therefore, Ohio Adm. Code 5120-5-03 is
rationally related to a legitimate government interest and comports with equal protection.
See State v. Haynie, 157 Ohio App.3d 708, 2004-Ohio-2452, 813 N.E.2d 686, ¶ 31 (3d
Dist.2004) (holding that Ohio Adm. Code 5120-5-03 does not violate equal protection.).
{¶72} Accordingly, the seventh assignment of error is overruled.
2 R.C. 5120.133(A) also permits the Ohio Department of Rehabilitation and Correction to deduct payments toward a certified judgment from a prisoner’s account without any other required proceeding in aid of execution. {¶73} Judgment affirmed.
It is ordered that appellee recover from appellant costs herein taxed. The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the common
pleas court to carry this judgment into execution. The defendant’s conviction having
been affirmed, any bail pending appeal is terminated. Case remanded to the trial court
for execution of sentence.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of
the Rules of Appellate Procedure.
EILEEN T. GALLAGHER, JUDGE
PATRICIA ANN BLACKMON, J., CONCURS; LARRY A. JONES, SR., P.J., CONCURS IN JUDGMENT ONLY