[Cite as State v. Magnone, 2016-Ohio-7100.]
IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT CLARK COUNTY
STATE OF OHIO : : Plaintiff-Appellee : Appellate Case No. 2015-CA-94 : v. : Trial Court Case No. 2015-CR-150 : CHAD MAGNONE : (Criminal Appeal from : Common Pleas Court) Defendant-Appellant : :
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OPINION
Rendered on the 30th day of September, 2016.
MEGAN M. FARLEY, Atty. Reg. No. 0088515, Assistant Clark County Prosecuting Attorney, 50 East Columbia Street, Fourth Floor, Springfield, Ohio 45502 Attorney for Plaintiff-Appellee
JON PAUL RION, Atty. Reg. No. 0067020, NICOLE RUTTER-HIRTH, Atty. Reg. No. 0081004, P.O. Box 10126, Dayton, Ohio 45402 Attorneys for Defendant-Appellant
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WELBAUM, J. -2-
{¶ 1} Defendant-appellant, Chad Magnone, appeals from his conviction in the
Clark County Court of Common Pleas after pleading no contest to two counts of
Pandering Sexually-Oriented Matter Involving a Minor and two counts of Illegal Use of a
Minor in Nudity-Oriented Material or Performance. Specifically, Magnone challenges the
trial court’s decision overruling his motion to suppress statements he made during an
interview with detectives in which he admitted to downloading and saving child
pornography onto his computer. Magnone also argues that the trial court erred in
accepting his no contest plea to the pandering charges and in finding him guilty of those
charges. Magnone further claims the definition of “nudity,” as that term is used in the
illegal use statute, R.C. 2907.323(A)(3), is unconstitutionally vague. Lastly, Magnone
contends in a supplemental assignment of error that his conviction and sentence for the
two counts of illegal use should be reversed on grounds that he was improperly advised
at the plea hearing that those offenses were felonies of the fourth degree and was
improperly sentenced for that offense level when the illegal use offenses were actually
felonies of the fifth degree. For the reasons outlined below, the judgment of the trial court
will be affirmed in part, reversed in part, and remanded for further proceedings consistent
with this opinion.
Facts and Course of Proceedings
{¶ 2} On March 23, 2015, the Clark County Grand Jury returned a 20-count
indictment charging Magnone with multiple counts of Pandering Obscenity Involving a
Minor, Pandering Sexually-Oriented Matter Involving a Minor, and Illegal Use of a Minor -3-
in Nudity-Oriented Material or Performance. Magnone initially pled not guilty to the
charges and then filed a motion to suppress. In his motion, Magnone sought to suppress
statements he made to detectives in which he admitted to downloading and saving child
pornography onto his computer. Magnone argued that his statements should be
suppressed because they were made during a custodial interrogation without Miranda
warnings.
{¶ 3} On July 17, 2015, the trial court held a hearing on Magnone’s motion to
suppress. At the hearing, the trial court heard testimony from both Magnone and
Detective Sandra Fent of the Springfield Police Department. Their testimony indicated
that on December 16, 2014, Magnone’s girlfriend found child pornography on Magnone’s
computer and brought a copy of it to the police department. After interviewing
Magnone’s girlfriend and reviewing the material, Detective Fent executed a search
warrant at Magnone’s home and took possession of his computer, which was later sent
away for a forensic examination.
{¶ 4} Following the search, Detective Fent and her partner, Detective Pergram,
made contact with Magnone at the post office in Enon, Ohio, where Magnone worked as
postmaster. Detective Fent testified that Magnone voluntarily agreed to speak with her
and Detective Pergram about his computer and, due to privacy concerns, opted to discuss
the matter with them at a nearby police station. In addition, Detective Fent testified that
she made it clear to Magnone that he would be returned to work following the interview.
Magnone testified that he agreed to speak with the detectives, but that he did not recall
whether he was given an option to have the interview somewhere other than the police
station. He did, however, recall Detective Fent telling him he would be taken back to -4-
work after the interview.
{¶ 5} Both Detective Fent and Magnone testified that Magnone was transported to
the police station in a police cruiser and was patted down before entering the cruiser.
The cruiser was driven by a third officer, Lieutenant Holler, who also conducted the pat-
down search. Detective Fent testified that Lieutenant Holler arrived after the detectives
contacted the Enon Police Department as a courtesy to let the department know that the
detectives were going to be in its jurisdiction.
{¶ 6} Magnone testified that upon arriving at the police station, he was taken to a
small interview room. He claimed that during the interview, Detective Pergram was
positioned in front of the room’s door, which made him feel as though he could not leave.
Magnone also testified that Detective Fent took his cell phone and told him that, based
on his statements, he was subject to felony charges. Magnone further claimed that he
was never told that he could leave the interview and believed that he was in custody.
{¶ 7} The State presented a video recording of the interview as State’s Exhibit No.
1 and played it for the trial court at the suppression hearing. The interview was
approximately 24 minutes long and showed a relaxed, casual conversation between
Magnone and the detectives. The video confirmed Detective Fent’s testimony that she
ensured the interview-room door was unlocked and that Magnone was never handcuffed
or placed under arrest on the day of the interview. Indeed, Magnone was returned to the
post office after the interview and was not arrested until March 25, 2015, three months
after the interview took place.
{¶ 8} As to the substance of the video, five minutes into the interview, Detective
Fent asked Magnone: “Is there anything on your computer that’s questionable as to -5-
photographs, videos, um, any downloads or anything?” In response, Magnone admitted
to opening up pornographic webpages “that looked like there was young people in them.”
Magnone estimated that the “young people” were probably 12 to 14 years of age, but later
admitted that some were possibly as young as 7 years old. Magnone told the detectives
that he deleted some, but not all of the child pornography from his computer, and indicated
that he had saved more than 50 pictures or videos.
{¶ 9} After Magnone’s admission, Detective Fent asked Magnone if he had a cell
phone. Upon learning that he had a cell phone, Detective Fent said “we’re going to need
to take that.” Detective Fent then provided Magnone with a consent form allowing the
detectives to search his phone, which Magnone read and signed. Thereafter, Magnone
asked the detectives about the possible charges and punishment. Detective Fent
responded that, based on his statements, he could be subject to anywhere between a
second and fourth-degree felony. She also told Magnone that she did not know what the
punishment would be, as it depended on what was found on his computer and whether
he had a criminal record.
{¶ 10} Following the suppression hearing, the trial court issued a written decision
overruling Magnone’s motion to suppress on grounds that he was not subject to a
custodial interrogation that required Miranda warnings. After the trial court denied the
motion, Magnone negotiated a plea agreement with the State and pled no contest to two
second-degree-felony counts of Pandering Sexually-Oriented Matter Involving a Minor in
violation of R.C. 2907.322(A)(1) and two fourth-degree-felony counts of Illegal Use of a
Minor in Nudity-Oriented Material in violation of R.C. 2907.323(A)(3). At sentencing, the
trial court classified Magnone as a Tier II Sex Offender and sentenced him to serve 6 -6-
years in prison on both pandering counts and 18 months in prison on both illegal-use
counts, with all counts to be served concurrently for a total term of 6 years in prison.
{¶ 11} Magnone subsequently appealed from his conviction and filed an appellate
brief raising three assignments of error for this court’s review. The matter then
proceeded to oral argument where Magnone presented an issue not raised in his brief.
We permitted the parties to submit briefs on the new issue, which Magnone designated
as a supplemental assignment of error. For purposes of clarity, we will begin our review
with Magnone’s supplemental assignment of error.
Supplemental Assignment of Error
{¶ 12} Magnone’s Supplemental Assignment of Error is as follows:
MR. MAGNONE’S CONVICTIONS AND SENTENCES FOR ILLEGAL USE
OF A MINOR IN NUDITY-ORIENTED MATERIAL WERE IMPROPER AS
THE OFFENSES WERE FELONIES OF THE FIFTH DEGREE, NOT
FELONIES OF THE FOURTH DEGREE.
{¶ 13} Under his Supplemental Assignment of Error, Magnone contends that his
conviction and sentence for the two counts of Illegal Use of a Minor in Nudity-Oriented
Material or Performance in violation of R.C. 2907.323(A)(3) should be reversed on
grounds that he was improperly advised at the plea hearing that those offenses were
felonies of the fourth degree, and, after pleading no contest, was improperly sentenced
for that offense level when the offenses were actually felonies of the fifth degree.
Magnone also contends that his trial counsel was ineffective for allowing him to plead no
contest to the higher offense level. -7-
{¶ 14} R.C. 2907.323(B) provides the penalties for offenses under that statute and
states as follows:
Whoever violates this section is guilty of illegal use of a minor in a nudity-
oriented material or performance. * * * Except as otherwise provided in this
division, whoever violates division (A)(3) of this section is guilty of a felony
of the fifth degree. If the offender previously has been convicted of or
pleaded guilty to a violation of this section or section 2907.321 or 2907.322
of the Revised Code, illegal use of a minor in a nudity-oriented material or
performance in violation of division (A)(3) of this section is a felony of the
fourth degree. * * *
(Emphasis added.)
{¶ 15} From the foregoing statute, it is clear that a violation of R.C. 2907.323(A)(3)
is a felony of the fifth degree unless the defendant has a prior conviction for a child
pornography charge. The State concedes that Magnone does not have a prior
conviction for a child pornography charge and agrees that his conviction and sentence
for the two illegal use counts should be reversed and remanded for a new hearing on
those charges.
{¶ 16} We agree with the parties and find that Magnone was improperly convicted
and sentenced for two fourth-degree felony counts of Illegal Use of a Minor in Nudity-
Oriented Material or Performance, as it is clear that the offenses are felonies of the fifth
degree. We therefore need not address Magnone’s ineffective assistance claim as it is
now rendered moot.
{¶ 17} Magnone’s Supplemental Assignment of Error is sustained. -8-
First Assignment of Error
{¶ 18} Magnone’s First Assignment of Error is as follows:
THE TRIAL COURT ERRED IN OVERRULING MAGNONE’S MOTION TO
SUPPRESS BECAUSE HE WAS IN CUSTODY WHEN INTERROGATED
AT THE POLICE STATION, REQUIRING MIRANDA WARNINGS.
{¶ 19} Under his First Assignment of Error, Magnone contends the trial court erred
in failing to suppress the statements he made to the detectives at the police station.
Magnone maintains that at the time he was questioned by the detectives, he was subject
to a custodial interrogation that required Miranda warnings. He claims that because the
detectives failed to Mirandize him, his statements are inadmissible and should have been
suppressed. We disagree.
{¶ 20} When reviewing a trial court’s ruling on a motion to suppress, “an appellate
court must accept the trial court’s findings of fact if they are supported by competent,
credible evidence.” State v. Burnside, 100 Ohio St.3d 152, 2003-Ohio-5372, 797 N.E.2d
71, ¶ 8, citing State v. Fanning, 1 Ohio St.3d 19, 437 N.E.2d 583 (1982). “Accepting
these facts as true, the appellate court must then independently determine, without
deference to the conclusion of the trial court, whether the facts satisfy the applicable legal
standard.” Id., citing State v. McNamara, 124 Ohio App.3d 706, 707 N.E.2d 539 (4th
Dist.1997). Thus, “[i]n reviewing the trial court’s ruling on a motion to suppress evidence,
this court is governed by the de novo standard of review and must accept the findings of
fact made by the trial court if they are supported by competent, credible evidence.”
(Citation omitted.) State v. Johnson, 2d Dist. Montgomery No. 23693, 2010-Ohio-6224, -9-
¶ 10.
{¶ 21} “The right to [Miranda] warnings is grounded in the Fifth Amendment’s
prohibition against compelled self-incrimination.” State v. Strozier, 172 Ohio App.3d
780, 2007-Ohio-4575, 876 N.E.2d 1304, ¶ 16 (2d Dist.), citing Moran v. Burbine, 475 U.S.
412, 420, 106 S.Ct. 1135, 89 L.Ed.2d 410 (1986). “The procedural safeguards
prescribed by Miranda apply only when persons are subjected to ‘custodial
interrogation.’ ” State v. Thomas, 2d Dist. Montgomery No. 20643, 2005-Ohio-3064,
¶ 27, citing Miranda v. Arizona, 384 U.S. 436, 444, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).
“ ‘Custodial interrogation’ means questioning initiated by the police after the person has
been taken into custody or otherwise deprived of his freedom to the degree associated
with a formal arrest.” (Citations omitted.) State v. Vineyard, 2d Dist. Montgomery No.
25854, 2014-Ohio-3846, ¶ 32.
{¶ 22} “In order to determine whether a person is in custody for purposes of
receiving Miranda warnings, courts must first inquire into the circumstances surrounding
the questioning and, second, given those circumstances, determine whether a
reasonable person would have felt that he or she was not at liberty to terminate the
interview and leave.” State v. Hoffner, 102 Ohio St.3d 358, 2004-Ohio-3430, 811 N.E.2d
48, ¶ 27, citing Thompson v. Keohane, 516 U.S. 99, 112, 116 S.Ct. 457, 133 L.Ed.2d 383
(1995). Therefore, “the test for custody is an objective test.” State v. Chenoweth, 2d
Dist. Miami No. 2010 CA 14, 2011-Ohio-1276, ¶ 8, citing California v. Beheler, 463 U.S.
1121, 1125, 103 S.Ct. 3517, 77 L.Ed.2d 1275 (1983). “The subjective views of the
interviewing officer and the suspect are immaterial to the determination of whether a
custodial interrogation was conducted.” (Citations omitted.) State v. Earnest, 2d Dist. -10-
Montgomery No. 26646, 2015-Ohio-3913, ¶ 22. Accord State v. Gray, 2d Dist.
Montgomery No. 26139, 2016-Ohio-1419, ¶ 74.
{¶ 23} “The factors a court should consider in applying this reasonable person test
include whether the encounter takes place in surroundings that are familiar to the suspect;
the number of law enforcement officers present, as well as their conduct and demeanor;
the degree of physical restraint imposed; and the duration and character of the
interrogation.” (Citation omitted.) State v. Farrell, 2d Dist. Miami No. 99-CA-24, 1999
WL 812249, *3 (Oct. 8, 1999). The following are some other more specific factors that
this court has considered:
1) What was the location where the questioning took place—i.e., was the
defendant comfortable and in a place a person would normally feel free to
leave? For example, the defendant might be at home as opposed to being
in the more restrictive environment of a police station;
2) Was the defendant a suspect at the time the interview began * * *;
3) Was the defendant’s freedom to leave restricted in any way;
4) Was the defendant handcuffed or told he was under arrest;
5) Were threats * * * made during the interrogation;
6) Was the defendant physically intimidated during the interrogation;
7) Did the police verbally dominate the interrogation;
8) What was the defendant’s purpose for being at the place where
questioning took place? * * *;
9) Were neutral parties present at any point during the questioning;
10) Did police take any action to overpower, trick, or coerce the defendant -11-
into making a statement.
(Citations omitted.) State v. Estepp, 2d Dist. Montgomery No. 16279, 1997 WL 736501,
*4 (Nov. 26, 1997).
{¶ 24} In Oregon v. Mathiason, 429 U.S. 492, 97 S.Ct. 711, 50 L.Ed.2d 714 (1977),
the United States Supreme Court found no custodial interrogation where the defendant
voluntarily came to the police station in response to a detective leaving his card at the
defendant’s apartment. Id. at 493-495. The defendant initially called the detective and
the detective asked the defendant where it would be convenient for them to meet. Id. at
493. After the defendant indicated that he had no preference, the detective suggested
that they meet at the police station, to which the defendant agreed. Id. The officer
subsequently interviewed the defendant at the police station in a closed office for half an
hour, telling him at the outset that he was not under arrest. Id. Once the interview was
over, the defendant left the station. Id.
{¶ 25} The court in Mathiason stated that:
In the present case, * * * there is no indication that the questioning took
place in a context where respondent’s freedom to depart was restricted in
any way. He came voluntarily to the police station, where he was
immediately informed that he was not under arrest. At the close of a 1/2-
hour interview respondent did in fact leave the police station without
hindrance. It is clear from these facts that Mathiason was not in custody
“or otherwise deprived of his freedom of action in any significant way.”
Id. at 495.
{¶ 26} In addition, the court explained that: -12-
Such a noncustodial situation is not converted to one in which Miranda
applies simply because a reviewing court concludes that, even in the
absence of any formal arrest or restraint on freedom of movement, the
questioning took place in a “coercive environment.” Any interview of one
suspected of a crime by a police officer will have coercive aspects to it,
simply by virtue of the fact that the police officer is part of a law enforcement
system which may ultimately cause the suspect to be charged with a crime.
But police officers are not required to administer Miranda warnings to
everyone whom they question. Nor is the requirement of warnings to be
imposed simply because the questioning takes place in the station house,
or because the questioned person is one whom the police suspect.
Miranda warnings are required only where there has been such a restriction
on a person’s freedom as to render him “in custody.” It was that sort of
coercive environment to which Miranda by its terms was made applicable,
and to which it is limited.
Id.
{¶ 27} In State v. Bowman, 2d Dist. Montgomery No. 18176, 2001 WL 43099, (Jan.
19, 2001), we found no custodial interrogation where two detectives first questioned the
defendant at his apartment in the presence of his girlfriend and then asked the defendant
if he would accompany them to the police department for further questioning. Id. at *5.
The defendant testified that when the detectives asked him to come down to the station,
he said, “I am going to get my shirt. Tell [my girlfriend] I will be back.” Id. The defendant
further said that the detectives repeatedly told him they would bring him back in a couple -13-
of hours. Id. The record was devoid of any evidence that the defendant was prevented
from leaving the police station once he arrived. Id. Based on these facts, we held that
a reasonable person in the defendant’s position would not have believed he was under
arrest or under restraint of freedom of the degree “associated with a formal arrest” at the
time he was interviewed by the detectives. Id.
{¶ 28} In State v. Stahl, 2d Dist. Greene No. 2004-CA-69, 2005-Ohio-2239, we
found no custodial interrogation where the defendant voluntarily appeared at the Xenia
police station to meet with a detective to discuss the molestation of his five-year-old niece.
Id. at ¶ 7-9. At the time of the interview, the defendant had not been arrested and police
still were investigating the case. Id. at ¶ 9. Nothing in the record suggested that the
detective prevented the defendant from leaving the interview room or in any way restricted
his freedom of movement. Id. The defendant also returned home after speaking with
the detective. Id. In light of these facts, we found the record devoid of any facts from
which we reasonably could conclude that the defendant was in custody for purposes of
Miranda. Id.
{¶ 29} In this case, Magnone argues that he was subject to a custodial
interrogation requiring Miranda warnings because he was: (1) confronted by detectives
at his place of employment; (2) questioned at a police station; (3) transported to the police
station in a police cruiser; (4) patted down before entering the cruiser; (5) taken to a small
interview room and positioned in a manner that prevented him from leaving the room; and
(6) never told he was free to leave the interview. Magnone also argues that after he
admitted to downloading the offending photos, the detectives took his cell phone and
advised him that, based upon his statements, he faced felony charges. As a result of -14-
these circumstances, Magnone claims he did not feel free to terminate the interview and
leave, and contends that a reasonable person in his situation would feel the same.
{¶ 30} In overruling Magnone’s motion to suppress, the trial court found that
Magnone voluntarily chose to be questioned at the police station for purposes of
discussing the issue of child pornography in private, as opposed to at the post office
where he worked. In addition, the court found that Magnone was never placed in
handcuffs, was never arrested or otherwise detained, and was free to leave at any time.
Moreover, the court found that, prior to questioning Magnone, Detective Fent promised
to return Magnone to the post office and then fulfilled that promise once the interview was
over.
{¶ 31} The aforementioned findings of fact made by the trial court are supported
by competent, credible evidence in the record. Specifically, during the suppression
hearing, Magnone testified that he agreed to speak to the detectives about material on
his computer when they made contact with him at the post office. Detective Fent testified
that when she spoke with Magnone at the post office, she gave him the option to speak
there or at the police station and Magnone chose the police station for a more private
setting. Detective Fent also testified that she advised Magnone that the questioning
would not take long and that he would be returned to work after the interview. Magnone
further testified that when he agreed to speak with the detectives, the detectives gave him
a few minutes to finish up his work at the post office before leaving for the police station.
{¶ 32} While Detective Fent testified that she did not expressly tell Magnone that
he was free to leave the interview, she claimed that during the interview she reiterated
her promise to return him to work. The video of the interview confirmed Detective Fent’s -15-
testimony, as well as Magnone’s testimony that he never asked to leave the interview and
never told the detectives that he did not want to speak with them. The video also
confirmed Detective Fent’s testimony that Magnone was not handcuffed or arrested
during the interview. Rather, the record indicates that Magnone was not arrested until
March 25, 2015, three months after the interview took place. In addition, both Detective
Fent and Magnone testified that the detectives indeed returned him to the post office after
the interview was finished.
{¶ 33} The trial court did not make a finding with regard to Magnone’s
transportation to the police station. However, we do not find that the circumstances
surrounding his transportation would lead a reasonable person in Magnone’s position to
believe that he or she was in custody. Magnone testified that he had originally planned
on driving himself to the police station, but when he saw that the detectives were waiting
for him in the front lobby of the post office, he chose to meet them in the lobby instead of
going out the back entrance to his car. From there, Magnone testified that he was
transported three blocks to the police station in a police cruiser and was patted down
before entering the cruiser. Detective Fent testified that it was conveyed to Magnone
that the pat down was merely for officer safety. Magnone also testified that he never
asked to drive himself to the police station. Accordingly, the facts indicate that Magnone
voluntarily entered the cruiser for transportation to the police station and was subject to a
routine pat down as a result.
{¶ 34} The trial court also did not make a finding with respect to Magnone’s claim
that he was questioned in a small interview room and positioned in a manner that
prevented him from leaving the room. Magnone testified that Detective Pergram was -16-
“where the door was at” and that he “wouldn’t feel comfortable getting up and trying to
squeeze by her with the handle being right behind her head basically.” Suppression
Hearing Trans. (July 17, 2015), p. 24. The video of the interview, however, does not
show that anyone was blocking the door to the interview room. Although the interview
room was small, the video shows that there was at least two or three feet of space
between Detective Pergram and the doorway. We also note that Detective Fent ensured
the interview-room door was unlocked.
{¶ 35} Regardless, Magnone’s subjective discomfort does not render him in
custody. The fact remains that Magnone was not physically restrained during the
interview and was never told that he could not leave the interview room. Magnone also
never attempted to excuse himself from the interview room and was not blocked from
leaving the room as he claimed. Under these circumstances, we do not find that
Detective Pergram’s positioning and the size of the interview room would have signaled
to a reasonable person in Magnone’s position that he or she was not free to terminate the
interview and leave the room.
{¶ 36} With respect to Magnone’s claim that he was in custody because Detective
Fent took his cell phone and told him he faced felony charges, we note that the video
shows these acts took place well after Magnone made the incriminating statements he
wants suppressed. Furthermore, Detective Fent told Magnone that his cell phone would
be returned to him at his residence later that evening. While Magnone’s cell phone was
actually returned to him the following day at the post office, Detective Fent’s promise to
return the cell phone to his residence would lead a reasonable person in Magnone’s
position to believe that he or she was free to leave and not in custody. -17-
{¶ 37} We further note that the two case examples Magnone cites in support of his
claim that he was in custody, In re T.F., 9th Dist. Lorain No. 08CA009449, 2009-Ohio-
3141 and State v. Robinson, 98 Ohio App.3d 560, 649 N.E.2d 18 (8th Dist.1994), are not
binding on this court and are distinguishable. Unlike Magnone, the defendant in In re
T.F. was only 12 years old and did not voluntarily go to the police station for questioning.
In re T.F. at ¶ 13. Although the defendant in Robinson did voluntarily go to the police
station to speak with detectives, there is no indication that the defendant was given a
choice to speak somewhere other than the police station like Magnone was here.
Robinson at 563-564.
{¶ 38} Based on the foregoing, we conclude that Magnone was not subject to a
custodial interrogation at the time he made his incriminating statements. Magnone
voluntarily agreed to be questioned by the detectives, chose to have the interview
conducted at the police station, and did not object to being transported in a police cruiser.
Magnone never asked to drive himself to the police station and was subject to a pat down
merely as a routine procedure for officer safety. Magnone was not handcuffed, arrested,
or otherwise physically detained by the detectives during the entire encounter. Most
importantly, prior to being questioned, Detective Fent told Magnone that he would be
returned to the post office after the interview and he was returned as promised. In telling
Magnone this, Detective Fent implicitly advised Magnone at the inception of their
encounter that he was not under arrest, which is analogous to Mathiason, 429 U.S. 492,
97 S.Ct. 711, 50 L.Ed.2d 714.
{¶ 39} In addition, the video establishes that Magnone voluntarily admitted to
downloading child pornography during the first five minutes of the interview after Detective -18-
Fent merely asked: “Is there anything on your computer that’s questionable as to
photographs, videos, um, any downloads or anything?” The detectives did not coerce,
threaten, intimidate, or trick Magnone into making this admission. While there were two
detectives in the interview room with Magnone, which could be considered by some to be
somewhat coercive, the interview was only 24 minutes long and was relaxed and friendly
throughout.
{¶ 40} Under the totality of the circumstances, a reasonable person in Magnone’s
position would not have believed that he or she was not free to terminate the interview
and leave. Therefore, we find that Magnone was not subject to a custodial interrogation
and that Miranda warnings were not required for his statements to be admissible.
Accordingly, the trial court did not err in overruling Magnone’s motion to suppress.
{¶ 41} Magnone’s First Assignment of Error is overruled
Second Assignment of Error
{¶ 42} Magnone’s Second Assignment of Error is as follows:
EVIDENCE THAT MAGNONE MERELY POSSESSED IMAGES DOES
NOT SUSTAIN A CONVICTION UNDER R.C. 2907.322(A)(1), WHICH
REQUIRES ADDITIONAL ACTION BY THE OFFENDER, AND
THEREFORE THE PLEA SHOULD NOT HAVE BEEN ACCEPTED.
{¶ 43} Under his Second Assignment of Error, Magnone challenges his conviction
for two counts of Pandering Sexually-Oriented Matter Involving a Minor in violation of R.C.
2907.322(A)(1). That statute provides that “[n]o person, with knowledge of the character
of the material or performance involved, shall * * * [c]reate, record, photograph, film, -19-
develop, reproduce, or publish any material that shows a minor participating or engaging
in sexual activity, masturbation, or bestiality[.]”
{¶ 44} Magnone contends that at the plea hearing the State merely alleged that he
“possessed” the prohibited material in R.C. 2907.322(A)(1) as opposed to creating,
recording, photographing, filming, developing, reproducing or publishing it. Magnone is
under the impression that pursuant to R.C. 2937.07, the State was required to present
the trial court with an explanation of the circumstances surrounding the charges sufficient
to support his conviction. Accordingly, he claims that because the State failed to
establish an element of the offense necessary to support the conviction at the plea
hearing, the trial court erred in accepting the no contest plea and in finding him guilty.
We again disagree.
{¶ 45} The statute Magnone relies on, R.C. 2937.07, governs the action on guilty
and no contest pleas in cases involving misdemeanors. “The requirements regarding no
contest pleas in misdemeanor cases are different than the rules in felony cases.” State
v. Adams, 2d Dist. Montgomery No. 22493, 2009-Ohio-2056, ¶ 14. In misdemeanor
cases, R.C. 2937.07 requires the trial court “to hear an explanation of the circumstances
surrounding the offense and then determine whether the facts are sufficient to convict on
a misdemeanor offense following a no contest plea.” Id. “In a felony case, however,
Crim.R. 11 permits a plea of no contest to a criminal charge, and does not require an
explanation of the circumstances. Instead, the rule permits the court to enter judgment
only based upon the facts as alleged in the indictment.” Id. Specifically, the Supreme
Court of Ohio has stated that “where the indictment, information, or complaint contains
sufficient allegations to state a felony offense and the defendant pleads no contest, the -20-
court must find the defendant guilty of the charged offense.” State v. Bird, 81 Ohio St.3d
582, 692 N.E.2d 1013 (1998), syllabus. Accord State v. Woolridge, 2d Dist. Montgomery
No. 18086, 2000 WL 1475699, *2 (Oct. 6, 2000).
{¶ 46} “Under [Crim.R. 11(B)(2)], a no contest plea, while not admitting guilt,
admits the truth of the facts alleged in the indictment, information or complaint.” Id.
“[S]ince in a no contest plea the defendant is admitting the truth of the facts as presented
in the charging document, the state need not deliver a statement of facts.” Id., citing
Crim.R. 11(B)(2) and State v. Bowsher, 116 Ohio App.3d 170, 172, 687 N.E.2d 316 (6th
Dist.1996). Moreover, the Supreme Court of Ohio has held that “a statement of facts by
a prosecutor does not constitute evidence.” (Citations omitted.) State v. Green, 81
Ohio St.3d 100, 104, 689 N.E.2d 556 (1998). Accord Woolridge at *2.
{¶ 47} “However, where the prosecutor presents a statement of facts and it ‘ “not
only fail[s] to include, but absolutely negative[s] the existence of, an essential element of
the offense charged in the indictment,” ’ then the trial court errs by convicting the
defendant on his no contest plea to the charge.” Woolridge at *2, quoting State v.
Edward Joseph Lowe, M.D., Inc., 2d Dist. Miami Nos. 93-CA-54, 93-CA-55, 1995 WL
127890 (Mar. 24, 1995), quoting State v. Cohen, 60 Ohio App.2d 182, 184, 396 N.E.2d
235 (1st Dist.1978). “Thus, although the omission of a fundamental fact is permissible,
the trial court may not find a defendant guilty based on his no contest plea if the state’s
statement of facts absolutely negates the existence of an essential element of the
offense.” (Emphasis omitted.) Id., citing Lowe. Accord State v. Beddow, 2d Dist.
Montgomery No. 18957, 2002 WL 252478, *2 (Feb. 22, 2002) (“[e]ven though an essential
element of an offense is alleged in the indictment to which the defendant pleads no -21-
contest, it may, nevertheless, constitute an abuse of discretion for the trial court to accept
a plea of no contest to that offense when a recitation by the prosecutor, at the plea
hearing, of the facts of the offense “absolutely negates an essential element of the
offense’ ”).
{¶ 48} In this case, the indictment charging Magnone alleged the following with
respect to the two counts of pandering at issue:
That as a continuous course of conduct from on or about September 3, 2014
to on or about December 15, 2014, * * * CHAD R. MAGNONE * * *,
knowing the character of the material, did create, record, photograph, film,
develop, reproduce, or publish any material that shows a minor participating
or engaging in sexual activity, masturbation, or bestiality in violation of
Section 2907.322(A)(1) of the Ohio Revised Code[.]
Indictment (Mar. 23, 2015), Clark County Court of Common Pleas Case No. 15 CR 0150,
Docket No. 1, p. 2-3.
{¶ 49} The prosecutor also recited the following at the plea hearing:
The facts to which the defendant is entering a plea of no contest are
that as a continuous course of conduct from on or about September the 3rd
2014, to on or about December 15, 2014, in Clark County, Ohio, Chad
Magnone did knowingly knowing the character of the material did create,
reproduce, or publish—excuse me, did knowing with knowledge of the
character of the material or performance involved did create, record,
photograph, film, any material that shows a minor participating or engaging
in sexual activity, masturbation or bestiality. -22-
If this matter had gone to trial, the State would have proven that
Magnone possessed approximately thirty-five (35) images containing
sexually oriented material involving a minor. That relates to count eight
and count eleven.
***
The State provided specific file names related to each of the counts.
With respect to count eight image 01(2)2.avi. With respect to count eleven
file name is 539.avi. * * *
Plea Hearing Trans. (Sept. 9, 2015), p. 3-5.
{¶ 50} As previously noted, Magnone claims that the State omitted a necessary
fact of the pandering offense at the plea hearing because the State indicated that he
merely “possessed” the offending material as opposed to either creating, recording
photographing, filming, developing, reproducing, or publishing it. However, there is
evidence in the record that Magnone admitted to downloading and saving the offending
material onto his computer, and we have previously held that downloading the offending
material from the Internet onto a personal computer is sufficient evidence for a trier of fact
to conclude that the images were “reproduced” for purposes of R.C. 2907.322(A)(1).
State v. Hodge, 2d Dist. Miami No. 2013 CA 27, 2014-Ohio-1860, ¶ 10; State v. Sullivan,
2d Dist. Montgomery No. 23948, 2011-Ohio-2976, ¶ 33-34. The statement that
Magnone “possessed” the offending material and the omission of the fact that Magnone
downloaded it onto his computer does not negate the existence of the “reproduced”
element of the offense since one can obviously both download and possess the offending
images. -23-
{¶ 51} Magnone also argues that the bill of particulars merely stated he
“possessed” the offending images; however, he failed to object to the State’s bill of
particulars as required by Crim.R. 12(C)(2). Accordingly, Magnone has waived all but
plain error with respect to the adequacy of the bill of particulars. State v. Turner, 11th
Dist. Ashtabula No. 2010-A-0060, 2011-Ohio-5098, ¶ 34, citing State v. Skatzes, 104
Ohio St.3d 195, 2004-Ohio-6391, 819 N.E.2d 215, ¶ 26. “Plain error is present only if
the error is obvious and, but for the error, the outcome of the proceedings clearly would
have been different.” Id., citing State v. Yarbrough, 95 Ohio St.3d 227, 2002-Ohio-2126,
767 N.E.2d 216, ¶ 108.
{¶ 52} In this case, we do not find that the State’s failure to indicate in the bill of
particulars that Magnone downloaded the offending images to his computer would have
changed the outcome of the proceedings, i.e., that Magnone would not have pled no
contest to the pandering charges. The indictment contained sufficient allegations to
state an offense for violating R.C. 2907.322(A)(1) and thus notified Magnone of the
conduct for which he was pleading no contest. Furthermore, the record indicates that
prior to pleading no contest, Magnone was well aware that child pornography was
discovered on his computer.
{¶ 53} By pleading no contest, Magnone admitted to the truth of the facts alleged
in the indictment and “where the indictment, information, or complaint contains sufficient
allegations to state a felony offense and the defendant pleads no contest, the court must
find the defendant guilty of the charged offense.” Bird, 81 Ohio St.3d at 584, 692 N.E.2d
1013. Accord Woolridge, 2d Dist. Montgomery No. 18086, 2000 WL 1475699 at *2.
Because the indictment contained sufficient allegations to state an offense for Pandering -24-
Sexually-Oriented Material Involving a Minor in violation of R.C. 2907.322(A)(1), the trial
court correctly found Magnone guilty of that offense following his no contest plea.
{¶ 54} We note that under this assignment of error, Magnone also raises an
ineffective assistance claim. To establish ineffective assistance of trial counsel, a
defendant must demonstrate that counsel’s performance was deficient and fell below an
objective standard of reasonable representation, and that the defendant was prejudiced
by counsel’s performance. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80
L.Ed.2d 674 (1984); State v. Bradley, 42 Ohio St.3d 136, 538 N.E.2d 373 (1989). To
succeed on such a claim, there must be a reasonable probability that, but for counsel’s
unprofessional errors, the result of the defendant’s trial would have been different. Id.
{¶ 55} Magnone claims his counsel rendered ineffective assistance by permitting
him to enter a no contest plea when there was, according to Magnone, insufficient
evidence to sustain a conviction under R.C. 2907.322(A)(1). However, as previously
discussed, the record indicates there was sufficient evidence to sustain such a conviction
given that Magnone admitted to downloading and saving child pornography onto his
personal computer during his interview with Detectives Fent and Pergram and also had
35 images containing sexually-oriented material involving a minor on two files recovered
from his computer. Accordingly, Magnone’s ineffective assistance claim must fail, as he
has failed to establish that his counsel’s performance was deficient.
{¶ 56} For the foregoing reasons, Magnone’s Second Assignment of Error is
overruled.
Third Assignment of Error -25-
{¶ 57} Magnone’s Third Assignment of Error is as follows:
THE DEFINITION OF NUDITY IS VAGUE AND THEREFORE
MAGNONE’S PLEA AS TO COUNTS TWELVE AND FIFTEEN MUST BE
VACATED.
{¶ 58} Under his Third Assignment of Error, Magnone challenges his conviction for
two counts of Illegal Use of a Minor in Nudity-Oriented Material in violation of R.C.
2907.323(A)(3). Magnone claims that the definition of “nudity,” as that term is used in
R.C. 2907.323(A)(3), is unconstitutionally vague.
{¶ 59} While under the Supplemental Assignment of Error we have already
decided to reverse Magnone’s conviction and sentence for the illegal use offenses as
fourth-degree felonies, we will nevertheless address this argument, as it still applies to
the fifth-degree felony offenses for which Magnone should have been convicted and
sentenced.
{¶ 60} “When a statute is challenged under the due-process doctrine prohibiting
vagueness, 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, 853 N.E.2d 1115, ¶ 84, citing
Kolender v. Lawson, 461 U.S. 352, 357, 103 S.Ct. 1855, 75 L.Ed.2d 903 (1983). “The
void-for-vagueness doctrine does not require statutes to be drafted with scientific
precision.” (Citation omitted.) Perez v. Cleveland, 78 Ohio St.3d 376, 378, 678 N.E.2d
537 (1997). “Instead, it permits a statute’s certainty to be ascertained by application of
commonly accepted tools of judicial construction, with courts indulging every reasonable -26-
interpretation in favor of finding the statute constitutional.” (Citation omitted.) Id. at 378-
379.
{¶ 61} The statute at issue, R.C. 2907.323(A)(3), provides as follows:
No personal shall * * * [p]ossess or view any material or performance
that shows a minor who is not the person’s child or ward in a state of nudity,
unless one of the following applies:
(a) The material or performance is sold, disseminated, displayed,
possessed, controlled, brought or caused to be brought into this state, or
presented for a bona fide artistic, 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, member of the clergy, prosecutor, judge, or
other person having a proper interest in the material or performance.
(b) The person knows that the parents, guardian, or custodian has
consented in writing to the photographing or use of the minor in a state of
nudity and to the manner in which the material or performance is used or
transferred.
{¶ 62} The term “nudity” is defined in R.C. 2907.01(H) as “the showing,
representation, or depiction of human male or female genitals, pubic area, or buttocks
with less than a full, opaque covering, or of a female breast with less than a full, opaque
covering of any portion thereof below the top of the nipple, or of covered male genitals in
a discernibly turgid state.” -27-
{¶ 63} In State v. Young, 37 Ohio St.3d 249, 525 N.E.2d 1363 (1988), the Supreme
Court of Ohio narrowed the definition of “nudity” as used in R.C. 2907.323(A)(3) in
response to a First Amendment attack on the statute for overbreadth. Specifically, the
Supreme Court construed R.C. 2907.323(A)(3) to prohibit “the possession or viewing of
material or performance of a minor who is in a state of nudity, where such nudity
constitutes a lewd exhibition or involves a graphic focus on the genitals, and where the
person depicted is neither the child nor the ward of the person charged.” (Emphasis
added.) Id. at 252, rev’d on other grounds, Osborne v. Ohio, 495 U.S. 103, 110 S.Ct.
1691, 109 L.Ed.2d 98 (1990). Therefore, according to Young, for purposes of violating
R.C. 2907.323(A)(3), the element of nudity must constitute a “lewd exhibition” or involve
a “graphic focus on the genitals.” State v. Martin, 2014-Ohio-3640, 18 N.E.3d 799, ¶ 12
(2d Dist.).
{¶ 64} In reaching this decision, the Supreme Court explained that while R.C.
2907.323(A)(3) does not expressly limit the prohibited state of nudity to a lewd exhibition
or a graphic focus on genitals, the proper purposes exceptions in subsections (a) and (b)
of the statute, showed a clear purpose to only prohibit conduct that is “not morally
innocent, i.e., the possession or viewing of the described material for p[r]urient purposes.”
(Emphasis sic.) Young at 251-252. “So construed, the statute’s proscription is not so
broad as to outlaw all depictions of minors in a state of nudity, but rather only those
depictions which constitute child pornography.” Id. at 252.
{¶ 65} In Osborne, the United States Supreme Court endorsed the narrowed
construction of R.C. 2907.323(A)(3), although Osborne reversed Young on other
grounds. The court in Osborne found that R.C. 2907.323(A)(3) passed constitutional -28-
muster on all issues of vagueness and overbreadth and specifically stated that:
It is obvious from the face of § 2907.323(A)(3) that the goal of the statute is
to eradicate child pornography. The provision criminalizes the viewing and
possessing of material depicting children in a state of nudity for other than
“proper purposes.” The provision appears in the “Sex Offenses” chapter of
the Ohio Code. Section 2907.323 is preceded by § 2907.322, which
proscribes “[p]andering sexually oriented matter involving a minor,” and
followed by § 2907.33, which proscribes “[d]eception to obtain matter
harmful to juveniles.” That Osborne’s photographs of adolescent boys in
sexually explicit situations constitute child pornography hardly needs
elaboration. Therefore, although § 2907.323(A)(3) as written may have
been imprecise at its fringes, someone in Osborne’s position would not be
surprised to learn that his possession of the four photographs at issue in
this case constituted a crime.
Osborne at 116.
{¶ 66} Accordingly, in reading the definition of “nudity” in R.C. 2907.01(H) in
conjunction with the proper purpose exclusions in sections (a) and (b) of R.C.
2907.323(A)(3), a person of ordinary intelligence would have sufficient notice of what
conduct is proscribed by the statute, i.e., possessing or viewing child pornography. That
the nudity must constitute a “lewd exhibition” or involve a “graphic focus on the genitals”
further clarifies the prohibited conduct so as not to punish morally innocent behavior.
Again, it is clear from the statute what conduct is prohibited, and it is specific enough to
prevent arbitrariness or discrimination in its enforcement. -29-
{¶ 67} We note that both Magnone and the State discuss our decision in Martin,
2014-Ohio-3640, 18 N.E.3d 799, which is currently being reviewed by the Supreme Court
of Ohio. In Martin, we declined to apply the narrowed definition of “nudity” in Young to
R.C. 2907.323(A)(1), a statute which prohibits one from photographing, creating,
directing, producing, or transferring any material or performance that shows a minor in
the state of nudity. We found that First Amendment protection concerns are less
compelling for the conduct prohibited in R.C. 2907.323(A)(1), as opposed to the conduct
in section (A)(3), i.e., merely possessing or viewing an offending image. Id. at ¶ 20.
Therefore, we held that the statutory definition of “nudity” in R.C. 2907.01(H) applies to
section (A)(1), not the narrower “lewd exhibition” and “graphic display of genitals”
definition. Id. at ¶ 21
{¶ 68} Because the instant case involves R.C. 2907.323(A)(3), the holding in
Martin is inapplicable here. The issue currently before the Supreme Court is: “With
respect to R.C. 2907.323(A)(1), which proscribes the creation or production of nudity-
oriented material involving a minor, which definition of nudity applies: the statutory
definition (R.C. 2907.01(H)), or the narrower definition set forth in State v. Young, 37 Ohio
St.3d 249, 525 N.E.2d 1363, which requires additional elements of ‘lewd depiction’ and
‘graphic focus on the genitals?’ ” State v. Martin, 141 Ohio St.3d 1452, 2015-Ohio-239,
23 N.E.3d 1194 (2015). Therefore, regardless of what the Supreme Court’s holding will
be in Martin, the fact remains that Young requires the nudity in R.C. 2907.323(A)(3) to
constitute “a lewd exhibition” or “involve graphic display of genitals.” As noted above,
such a definition is not unconstitutionally vague given the proper purpose exclusions in
sections (a) and (b) of the statute. -30-
{¶ 69} Magnone’s Third Assignment of Error is overruled.
Conclusion
{¶ 70} Given that we have sustained Magnone’s Supplemental Assignment of
Error and overruled his remaining three assignments of error, the judgment of the trial
court is affirmed in part, reversed in part, and remanded for further proceedings consistent
with this opinion. The only portion of the trial court’s judgment that is reversed is
Magnone’s conviction and sentence for the two counts of Illegal Use of a Minor in Nudity-
Oriented Material or Performance in violation of R.C. 2907.323(A)(3). On remand, the
court shall hold a new hearing with respect to those charges only.
DONOVAN, P.J. and FAIN, J., concur.
Copies mailed to:
Megan M. Farley Jon Paul Rion Nicole Rutter-Hirth Hon. Douglas M. Rastatter