[Cite as State v. Hadding, 2013-Ohio-643.]
IN THE COURT OF APPEALS OF OHIO THIRD APPELLATE DISTRICT AUGLAIZE COUNTY
STATE OF OHIO,
PLAINTIFF-APPELLEE, CASE NO. 2-12-14
v.
BEN L. HADDING, OPINION
DEFENDANT-APPELLANT.
Appeal from Auglaize County Common Pleas Court Trial Court No. 2011-CR-169
Judgment Affirmed
Date of Decision: February 25, 2013
APPEARANCES:
S. Mark Weller for Appellant
R. Andrew Augsburger for Appellee Case No. 2-12-14
PRESTON, P.J.
{¶1} Defendant-appellant, Ben Hadding, appeals the Auglaize County
Court of Common Pleas’ sentence of nine years and eleven months imprisonment
following a jury verdict finding him guilty of four counts of pandering obscenity
involving a minor. Hadding argues the trial court erred when it found his offenses
were not allied offenses of similar import. For the following reasons, we affirm.
{¶2} The present case stems from an incident that occurred on September
17, 2011. (Apr. 25, 2012 Tr. at 29-30). Hadding’s eleven-year-old daughter,
C.H., called law enforcement after an altercation with Hadding’s girlfriend,
Angiela McClure. (Id.). When the officers arrived, C.H. told them McClure had
slapped her. (Id.). C.H. also informed the officers that she and McClure’s
thirteen-year-old daughter (at the time of the offense), S.M., had discovered a
video camera she alleged Hadding had hid in the bathroom to videotape them
coming out of the shower, and that the girls had caught him attempting to take
photographs underneath their clothing while they were sleeping. (Id. at 31).
While searching the house, the officers discovered a camera and a camcorder in
Hadding’s closet, and a videotape in the nightstand next to his bed. (Apr. 26, 2012
Tr. at 159-160). The officers also obtained Hadding’s cell phone. (Id.). The
nightstand videotape contained a recording of S.M. removing a towel and getting
dressed after taking a shower. (Apr. 25, 2012 Tr. at 53). Hadding’s cell phone
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contained an image of fingers pulling underwear away from S.M., revealing her
vagina. (Apr. 26, 2012 Tr. at 228).
{¶3} On November 17, 2011, the Auglaize County Grand Jury indicted
Hadding on four counts of pandering obscenity involving a minor. (Doc. No. 1).
Counts One and Three alleged Hadding had created obscene material involving a
minor in violation of R.C. 2907.321(A)(1), felonies of the second degree, and
Counts Two and Four alleged that Hadding possessed obscene material involving
a minor in violation of R.C. 2907.321(A)(5), felonies of the fourth degree. (Id.).
{¶4} The trial court arraigned Hadding on November 22, 2011. (Doc. No.
11). Hadding pled not guilty to the charges. (Id.).
{¶5} On April 25-27, 2012, the trial court held a jury trial. (Doc. No. 86).
The jury found Hadding guilty of all four counts of pandering obscenity involving
a minor. (Doc. Nos. 81-84).
{¶6} On June 14, 2012, the trial court held a sentencing hearing. (Doc. No.
99). The trial court determined the offenses were not allied offenses of similar
import and did not merge. (Id.). The trial court sentenced Hadding to seven years
imprisonment on Count One, eighteen months imprisonment on Count Two, seven
years imprisonment on Count Three, and seventeen months imprisonment on
Count Four. (Id.). The trial court ordered Hadding to serve Counts One, Two, and
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Four consecutively to each other and concurrently to Count Two, for a total
sentence of nine years and eleven months imprisonment. (Id.).
{¶7} On July 13, 2012, Hadding filed a notice of appeal. (Doc. No. 116).
Hadding now raises one assignment of error for our review.
Assignment of Error
The trial court erred when it failed to merge Count I with Count II and Count III with Count IV and sentenced the defendant on all four counts of the indictment.
{¶8} In his sole assignment of error, Hadding argues the trial court erred
when it determined that Count One did not merge with Count Two and Count
Three did not merge with Count Four. Hadding contends that the possession and
creation of the obscene material involving a minor are allied offenses of similar
import because he could not create the photographs and videos without also
possessing them. Hadding argues that since the offenses are allied offenses of
similar import, the trial court erred when it failed to merge them. In response, the
State argues that the trial court correctly determined that the offenses should not
merge because Hadding had a separate animus for each offense. The State
contends that Hadding continued to possess the photograph and video after
creating them, which is evidence of a separate animus for the possession from the
animus for the creation.
-4- Case No. 2-12-14
{¶9} Whether offenses are allied offenses of similar import is a question of
law that this Court reviews de novo. State v. Stall, 3d Dist. No. 3-10-12, 2011-
Ohio-5733, ¶ 15, citing State v. Brown, 3d Dist. No. 1-10-31, 2011-Ohio-1461, ¶
36.
{¶10} R.C. 2941.25, Ohio’s multiple-count statute, states:
(A) Where the same conduct by 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.
(B) 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.
{¶11} In State v. Johnson, a plurality opinion, the Supreme Court of Ohio
modified the analysis for determining whether offenses are allied offenses of
similar import pursuant to R.C. 2941.25. 128 Ohio St.3d 153, 2010-Ohio-6314.
First, the court must determine whether it is possible to commit both offenses with
the same conduct. Id. at ¶ 48. “If the multiple offenses can be committed with the
-5- Case No. 2-12-14
same conduct, then the court must determine whether the offenses were committed
by the same conduct, i.e., ‘a single act, committed with a single state of mind.’” Id.
at ¶ 49, quoting State v. Brown, 119 Ohio St.3d 447, 2008-Ohio-4569, ¶ 50
(Lanzinger, J., dissenting). If it is possible to commit the offenses with the same
conduct and the defendant did, in fact, commit the multiple offenses with the same
conduct, then the offenses are allied offenses of similar import and will merge. Id.
at ¶ 50. However, “if the court determines that the commission of one offense will
never result in the commission of the other, or if the offenses are committed
separately, or if the defendant has separate animus for each, then according to R.C.
2941.25(B), the offenses will not merge.” Id. at ¶ 51.
{¶12} Hadding was convicted of pandering obscenity involving a minor in
violation of R.C. 2907.321(A)(1) and (5). The statute states, in pertinent part, that:
(A) No person, with knowledge of the character of the material or
performance involved, shall do any of the following:
(1) Create, reproduce, or publish any obscene material that has a
minor as one of its participants or portrayed observers;
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[Cite as State v. Hadding, 2013-Ohio-643.]
IN THE COURT OF APPEALS OF OHIO THIRD APPELLATE DISTRICT AUGLAIZE COUNTY
STATE OF OHIO,
PLAINTIFF-APPELLEE, CASE NO. 2-12-14
v.
BEN L. HADDING, OPINION
DEFENDANT-APPELLANT.
Appeal from Auglaize County Common Pleas Court Trial Court No. 2011-CR-169
Judgment Affirmed
Date of Decision: February 25, 2013
APPEARANCES:
S. Mark Weller for Appellant
R. Andrew Augsburger for Appellee Case No. 2-12-14
PRESTON, P.J.
{¶1} Defendant-appellant, Ben Hadding, appeals the Auglaize County
Court of Common Pleas’ sentence of nine years and eleven months imprisonment
following a jury verdict finding him guilty of four counts of pandering obscenity
involving a minor. Hadding argues the trial court erred when it found his offenses
were not allied offenses of similar import. For the following reasons, we affirm.
{¶2} The present case stems from an incident that occurred on September
17, 2011. (Apr. 25, 2012 Tr. at 29-30). Hadding’s eleven-year-old daughter,
C.H., called law enforcement after an altercation with Hadding’s girlfriend,
Angiela McClure. (Id.). When the officers arrived, C.H. told them McClure had
slapped her. (Id.). C.H. also informed the officers that she and McClure’s
thirteen-year-old daughter (at the time of the offense), S.M., had discovered a
video camera she alleged Hadding had hid in the bathroom to videotape them
coming out of the shower, and that the girls had caught him attempting to take
photographs underneath their clothing while they were sleeping. (Id. at 31).
While searching the house, the officers discovered a camera and a camcorder in
Hadding’s closet, and a videotape in the nightstand next to his bed. (Apr. 26, 2012
Tr. at 159-160). The officers also obtained Hadding’s cell phone. (Id.). The
nightstand videotape contained a recording of S.M. removing a towel and getting
dressed after taking a shower. (Apr. 25, 2012 Tr. at 53). Hadding’s cell phone
-2- Case No. 2-12-14
contained an image of fingers pulling underwear away from S.M., revealing her
vagina. (Apr. 26, 2012 Tr. at 228).
{¶3} On November 17, 2011, the Auglaize County Grand Jury indicted
Hadding on four counts of pandering obscenity involving a minor. (Doc. No. 1).
Counts One and Three alleged Hadding had created obscene material involving a
minor in violation of R.C. 2907.321(A)(1), felonies of the second degree, and
Counts Two and Four alleged that Hadding possessed obscene material involving
a minor in violation of R.C. 2907.321(A)(5), felonies of the fourth degree. (Id.).
{¶4} The trial court arraigned Hadding on November 22, 2011. (Doc. No.
11). Hadding pled not guilty to the charges. (Id.).
{¶5} On April 25-27, 2012, the trial court held a jury trial. (Doc. No. 86).
The jury found Hadding guilty of all four counts of pandering obscenity involving
a minor. (Doc. Nos. 81-84).
{¶6} On June 14, 2012, the trial court held a sentencing hearing. (Doc. No.
99). The trial court determined the offenses were not allied offenses of similar
import and did not merge. (Id.). The trial court sentenced Hadding to seven years
imprisonment on Count One, eighteen months imprisonment on Count Two, seven
years imprisonment on Count Three, and seventeen months imprisonment on
Count Four. (Id.). The trial court ordered Hadding to serve Counts One, Two, and
-3- Case No. 2-12-14
Four consecutively to each other and concurrently to Count Two, for a total
sentence of nine years and eleven months imprisonment. (Id.).
{¶7} On July 13, 2012, Hadding filed a notice of appeal. (Doc. No. 116).
Hadding now raises one assignment of error for our review.
Assignment of Error
The trial court erred when it failed to merge Count I with Count II and Count III with Count IV and sentenced the defendant on all four counts of the indictment.
{¶8} In his sole assignment of error, Hadding argues the trial court erred
when it determined that Count One did not merge with Count Two and Count
Three did not merge with Count Four. Hadding contends that the possession and
creation of the obscene material involving a minor are allied offenses of similar
import because he could not create the photographs and videos without also
possessing them. Hadding argues that since the offenses are allied offenses of
similar import, the trial court erred when it failed to merge them. In response, the
State argues that the trial court correctly determined that the offenses should not
merge because Hadding had a separate animus for each offense. The State
contends that Hadding continued to possess the photograph and video after
creating them, which is evidence of a separate animus for the possession from the
animus for the creation.
-4- Case No. 2-12-14
{¶9} Whether offenses are allied offenses of similar import is a question of
law that this Court reviews de novo. State v. Stall, 3d Dist. No. 3-10-12, 2011-
Ohio-5733, ¶ 15, citing State v. Brown, 3d Dist. No. 1-10-31, 2011-Ohio-1461, ¶
36.
{¶10} R.C. 2941.25, Ohio’s multiple-count statute, states:
(A) Where the same conduct by 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.
(B) 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.
{¶11} In State v. Johnson, a plurality opinion, the Supreme Court of Ohio
modified the analysis for determining whether offenses are allied offenses of
similar import pursuant to R.C. 2941.25. 128 Ohio St.3d 153, 2010-Ohio-6314.
First, the court must determine whether it is possible to commit both offenses with
the same conduct. Id. at ¶ 48. “If the multiple offenses can be committed with the
-5- Case No. 2-12-14
same conduct, then the court must determine whether the offenses were committed
by the same conduct, i.e., ‘a single act, committed with a single state of mind.’” Id.
at ¶ 49, quoting State v. Brown, 119 Ohio St.3d 447, 2008-Ohio-4569, ¶ 50
(Lanzinger, J., dissenting). If it is possible to commit the offenses with the same
conduct and the defendant did, in fact, commit the multiple offenses with the same
conduct, then the offenses are allied offenses of similar import and will merge. Id.
at ¶ 50. However, “if the court determines that the commission of one offense will
never result in the commission of the other, or if the offenses are committed
separately, or if the defendant has separate animus for each, then according to R.C.
2941.25(B), the offenses will not merge.” Id. at ¶ 51.
{¶12} Hadding was convicted of pandering obscenity involving a minor in
violation of R.C. 2907.321(A)(1) and (5). The statute states, in pertinent part, that:
(A) No person, with knowledge of the character of the material or
performance involved, shall do any of the following:
(1) Create, reproduce, or publish any obscene material that has a
minor as one of its participants or portrayed observers;
***
(5) Buy, procure, possess, or control any obscene material, that has
a minor as one of its participants;
-6- Case No. 2-12-14
{¶13} Hadding concedes that separate images, in this case the video and the
cell phone image, are sufficient to establish separate acts requiring a sufficient
animus. See State v. Eal, 10th Dist. No. 11AP-460, 2012-Ohio-1373, ¶ 93
(“Although defendant may have uploaded the ten images at around the same time,
each file he uploaded constitutes a new and distinct crime.”). However, Hadding
argues that the two counts that apply to each item of obscene material should have
merged because there was a single act and animus for each one. Hadding relies on
the Eighth District’s decision in State v. Hendricks to support his argument that the
creation and possession of obscene material involving a minor in violation of R.C.
2907.321(A)(1) and (A)(5) are allied offenses of similar import. 8th Dist. No.
92213, 2009-Ohio-5556. In Hendricks, the Eighth District held that the two
offenses were allied offenses of similar import because the creation of the obscene
material would necessarily result in possession of that material. Id. at 33.
{¶14} While we agree with the Hendricks Court that it is possible to
commit the two offenses with the same conduct, that is not the end of our inquiry.
The Eighth District issued its opinion in Hendricks prior to the Ohio Supreme
Court’s decision in Johnson; consequently, the analysis this Court must apply is
different from the analysis the Eighth District applied in Hendricks. Pursuant to
Johnson, we must also determine whether Hadding committed the two offenses
separately or with a separate animus. Johnson at ¶ 51. The Supreme Court of
-7- Case No. 2-12-14
Ohio has defined animus as “purpose, or more properly, immediate motive.” State
v. Logan, 60 Ohio St.2d 126, 131 (1979). If Hadding committed the two offenses
separately or with a separate animus, then they are not allied offenses of similar
import even though it is possible to commit the two offenses with the same
conduct. Id.
{¶15} We agree with the trial court that Hadding had a separate animus for
the creation and possession of the obscene material. During the trial, multiple
witnesses testified that Hadding secretly created the obscene material and then
continued to possess it. C.H. testified that she had observed Hadding take pictures
of S.M. at night on multiple occasions. (Apr. 25, 2012 Tr. at 35-37). C.H.
testified that on one night in particular, about a month or two before she called the
police, she woke up at night “and I seen my dad about to walk into my room with
his phone. He told me to go back to bed and I didn’t. And then I heard him come
in again so I squenced (sic) my eyes to see what was going on and he walked over
to [S.M.]’s side and lifted up her tank top.” (Id. at 35). C.H. testified that
Hadding would also pull down C.H.’s tank top and that she saw Hadding enter
their room to take pictures about three or four times. (Id. at 37). According to
C.H., she had also discovered a video camera in the bathroom. (Id. at 31). C.H.
testified that she gave the camera to S.M., who hid it, but that the girls
subsequently found the camera hidden in the bathroom again. (Id. at 62).
-8- Case No. 2-12-14
{¶16} S.M. testified that since she was wearing her softball uniform in the
video, it must have been taken in May or June 2011. (Id. at 100). S.M. testified
that it appeared the camera had been hidden under C.H.’s bed in the room they
shared. (Id. at 99). S.M. testified that the video showed her leaving her bedroom
to go take a shower, returning in a towel, and then removing the towel to get
dressed. (Id. at 100-102). S.M. also testified that the shorts and bedspread in the
cell phone image belonged to her, that the image was of her vagina, and that she
was unaware it had been taken. (Id. at 108-109). S.M. further testified that she
had discovered a video camera hidden in the bathroom on multiple occasions. (Id.
at 89-91).
{¶17} Law enforcement testified regarding the image of S.M. that they
discovered on Hadding’s cell phone. Detective James Holzapple testified that he
obtained Hadding’s cell phone and that Hadding indicated he had owned the
phone for two or three months prior to September 17, 2011. (Apr. 26, 2012 Tr. at
177). Officer Kevin Delong testified that he processed Hadding’s cell phone and
discovered four images. (Id. at 198-204). Two images were created on August
30, 2011 at 10:39 p.m. and 11:31 p.m. (Id. at 204). The remaining two images
were created on September 1, 2011 at 11:31 p.m. and September 12, 2011 at 11:08
p.m. (Id.). Detective Jerry Sawmiller testified that the image relevant to this case
-9- Case No. 2-12-14
was of fingers pulling underwear away from S.M. (Id. at 228). That image was
one of the two created on August 30, 2011. (Id. at 247).
{¶18} After reviewing the evidence, we agree with the trial court that
Hadding first created the video and cell phone image of S.M., and then continued
to possess this obscene material until his arrest on September 17, 2011. We also
find that Hadding had one animus, or improper motive, for initially creating the
obscene material, and a separate animus for continuing to possess it after its
creation. We note that the trial testimony established that Hadding created the
video in May or June 2011 and the cell phone image on August 30, 2011, and
possessed both obscene items until his arrest on September 17, 2011. The trial
testimony also established that Hadding created the images by hiding a video
camera in the girls’ room and sneaking into the room at night to capture the cell
phone image. The trial testimony further established that Hadding had made prior
attempts to capture obscene material, which may or may not have been successful,
by hiding a camera in the bathroom and sneaking into their bedroom on multiple
occasions.
{¶19} We disagree with Hadding that his initial creation and then continued
possession of the video and images constituted a single course of conduct lasting
weeks, and even months. Rather, we find that Hadding had a separate motive to
create the obscene material from his motive to continue to possess it for his
- 10 - Case No. 2-12-14
personal use, and that this separate animus results in separate offenses. The trial
court correctly concluded that Hadding’s offenses were not allied offenses of
similar import and should not merge.
{¶20} Hadding’s assignment of error is, therefore, overruled.
{¶21} Having found no error prejudicial to the appellant herein in the
particulars assigned and argued, we affirm the judgment of the trial court.
WILLAMOWSKI and SHAW, J.J., concur.
/jlr
- 11 -