State v. Rivas

875 N.E.2d 655, 172 Ohio App. 3d 473, 2007 Ohio 3593
CourtOhio Court of Appeals
DecidedJuly 13, 2007
DocketNo. 05-CA-147.
StatusPublished
Cited by6 cases

This text of 875 N.E.2d 655 (State v. Rivas) is published on Counsel Stack Legal Research, covering Ohio Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Rivas, 875 N.E.2d 655, 172 Ohio App. 3d 473, 2007 Ohio 3593 (Ohio Ct. App. 2007).

Opinion

Fain, Judge.

{¶ 1} Defendant-appellant, Jose Rivas, appeals from his convictions for importuning and attempted unlawful sexual conduct with a minor. The charges arose from Rivas’s on-line chats with a Xenia police officer posing as a 14-year-old girl whom Rivas arranged to meet at a hotel for sex. Rivas filed a series of pretrial motions regarding discovery issues, after which the case proceeded to a jury trial. The jury found Rivas guilty as charged, and the trial court sentenced him to six months in prison.

{¶ 2} Rivas challenges the trial court’s ruling that he not be allowed to make an electronic copy of the police department’s computer hard drive on which the original records of the on-line chats were stored. Rivas also maintains that the transcripts of those chats should not have been admitted into evidence, because they were not properly authenticated. Although allowing Rivas to copy the entire hard drive may have compromised other investigations, as well as the privacy of those involved, we conclude that the trial court did have an obligation to conduct an in camera review to verify the accuracy of the copied records that Rivas received. In our view, forcing a litigant to rely upon an adverse party’s representation that a transcript from a hard drive accurately reflects the information stored on the hard drive, when that accuracy could be directly verified, is inconsistent with due process. The judgment of the trial court is reversed, and this cause is remanded for further proceedings consistent with this opinion.

I

{¶ 3} In early January 2005, Xenia Police Detective Alonzo Wilson, who works in the Internet Child Protection Unit, entered an America On Line (“AOL”) chat room. Within minutes of Alonzo entering the general chat room, and before he had even made any contributions, 36-year-old Rivas contacted Wilson via instant messaging and identified himself as a 19-year-old man. Wilson identified himself as a 14-year-old girl named Molly.

{¶ 4} The conversation quickly became sexual in nature, and Rivas sent a photograph of a young man lying naked on a bed. Much of the chat consisted of Rivas asking Molly about her sexual experience and describing in great detail what sexual acts he wanted to perform on Molly and have performed by Molly on him. Rivas offered Molly $200 and encouraged her to buy a $20 web camera so *475 that she could send him nude photos of herself. Molly did send one photo purporting to be of herself that was actually a photo of another, female detective taken when she was about 14 years old. While the two were making plans to meet for sex, Wilson’s computer shut down. By the time he returned to the chat room, Rivas was gone.

{¶ 5} The following day Wilson contacted Rivas through the same chat room. Rivas again offered Wilson $200, and the two arranged to meet for sex at an area hotel later that afternoon. During the course of both conversations, Wilson made several references to being only 14 and not wanting to get pregnant. He also talked of school, homework, and cheerleading, and he told Rivas that he lived with his grandmother.

{¶ 6} Wilson, three other detectives, and a patrol officer set up a surveillance of the hotel. Rivas stopped at a gas station across the street and withdrew $300 from the ATM before checking into the hotel. Rivas paged Wilson with the room number. As the detectives approached the room, Rivas exited. The detectives arrested Rivas, who was carrying $200 in cash, three condoms, and a cell phone.

{¶ 7} Rivas testified in his own defense along with several character witnesses. Rivas disputed the accuracy of more than half of the content of the conversation with Wilson. He denied sending or receiving photos, and he denied claiming to be 19. Moreover, Rivas maintained that there was nothing said that could have led him to believe that he was communicating with a minor. Rivas insisted that he thought he was arranging to meet a 41-year-old woman.

II

{¶ 8} Rivas’s First Assignment of Error is as follows:

{¶ 9} “The trial court erred in denying appellant’s motion to compel inspection and copying of the computer hard drive.”

{¶ 10} In his First Assignment of Error, Rivas argues that the trial court erred in refusing to order the state to allow his expert to make an electronic copy of the police department’s computer hard drive. The granting or denial of a motion to compel discovery is reviewed under an abuse-of-discretion standard. The inquiry is whether the trial court’s decision is unreasonable, arbitrary, or unconscionable. State ex rel. V Cos. v. Marshall (1998), 81 Ohio St.3d 467, 469, 692 N.E.2d 198. While we do not hold that the trial court was required to allow the making of the electronic copy of the hard drive, we do conclude that the trial court abused its discretion by refusing to allow any means for Rivas to be assured that the transcripts provided to him by the police, purporting to represent the information stored on the hard drive concerning his conversation with “Molly,” were both complete and accurate.

*476 {¶ 11} In preparation for trial, Rivas filed a motion to preserve all electronic evidence in the possession of the Xenia Police Department regarding the charges against him, and he filed a Crim.R. 16 demand for discovery. The trial court granted both motions, stating that Rivas could inspect the evidence in the presence and under the control of the Xenia Police Department. Citing security concerns, the state refused Rivas’s expert access to the police department’s hard drive and refused to allow Rivas’s expert to make a “mirror image” or “electronic snapshot” of the information stored on the hard drive. The state did provide Rivas with a transcript of the chats both on paper and on disk.

{¶ 12} Claiming that the transcripts were incomplete, Rivas filed a motion to compel discovery. The trial court held that absent any allegations or evidence that the transcripts were inaccurate, Crim.R. 16 did not require that the state provide Rivas with a mirror image of the police department’s hard drive. Insisting that the transcripts did not contain the complete record of the internet exchanges between himself and “Molly,” Rivas moved for reconsideration, which the trial court overruled.

{¶ 13} Rivas’s defense centers on his claim that he believed that he was communicating with a 41-year-old woman rather than a 14-year-old girl. He denies receiving the photo of Molly. Additionally, he disputes more than half of the conversation, denying all references to Molly going to school, doing homework, cheerleading, living with her grandmother, or in any other way revealing that she was a minor. In order)to support his claims, Rivas maintains that he needed access to the police department’s hard drive because the only way that he could determine that the copies provided by the police were complete and accurate was to compare them to the information stored on the hard drive.

{¶ 14} The state contends that its interest in safeguarding the details of other • investigations justified not allowing Rivas to have access to the hard drive. It is undisputed that the hard drive in question contained information regarding three years of investigation of child-exploitation cases, including many ongoing cases.

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Related

State v. Rivas
2009 Ohio 1354 (Ohio Supreme Court, 2009)
Dirickson v. State
291 S.W.3d 198 (Court of Appeals of Arkansas, 2009)
State v. Ross, 1-08-47 (1-20-2009)
2009 Ohio 188 (Ohio Court of Appeals, 2009)

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Bluebook (online)
875 N.E.2d 655, 172 Ohio App. 3d 473, 2007 Ohio 3593, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-rivas-ohioctapp-2007.