State v. Stutz

2023 Ohio 1082

• Court: Ohio Court of Appeals
• Decided: March 31, 2023
• Docket: 29521
• Status: Published

Opinion

[Cite as State v. Stutz, 2023-Ohio-1082.]

IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT MONTGOMERY COUNTY

STATE OF OHIO : : Appellee : C.A. No. 29521 : v. : Trial Court Case No. 2020 CR 01817 : CHARLES DD STUTZ : (Criminal Appeal from Common Pleas : Court) Appellant : :

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OPINION

Rendered on March 31, 2023

MATHIAS H. HECK, JR., by ELIZABETH A. ELLIS, Attorney for Appellee

CHARLES M. BLUE, Attorney for Appellant

.............

EPLEY, J.

{¶ 1} Defendant-Appellant Charles Stutz appeals from his convictions in the

Montgomery County Court of Common Pleas after he pleaded guilty to four counts of

pandering sexually oriented material involving a minor – two as felonies of the second

degree and two as felonies of the fourth degree – and was sentenced to 8 to 12 years in

prison. He was also classified as a Tier I and Tier II sex offender. For the reasons that -2-

follow, the judgment of the trial court will be affirmed in part and reversed in part, and the

case will be remanded for resentencing only.

I. Facts and Procedural History

{¶ 2} In early 2019, Moraine police were called to meet with a citizen who had

reportedly found a SD card that contained images of child sexual abuse. During their

investigation, law enforcement discovered more than 300 child sexual abuse videos on

the SD card as well as folders which identified Stutz as its owner.

{¶ 3} Further investigation led officers to additional devices – two cell phones and

an additional SD card – found in a towed car belonging to Stutz. After obtaining a search

warrant for the phones, investigators found hundreds of additional images and videos

depicting child sexual abuse and applications used to download and view them.

{¶ 4} Images and videos were sent to the National Center for Missing and

Exploited Children, which determined that 18 of the images contained known victims from

the United States, Canada, Ecuador, France, Germany, Moldova, and Slovenia. Many of

the images were of children under the age of 13, some as young as five.

{¶ 5} Moraine investigators also spoke with several people associated with Stutz

who all confirmed that they had witnessed him view inappropriate images, and a former

employer confirmed that Stutz had been terminated after he was observed looking at

images at work.

{¶ 6} Stutz was eventually indicted on 18 counts of pandering sexually oriented

material involving a minor, in violation of R.C. 2907.332(A)(1), 35 counts of pandering

sexually oriented material involving a minor, in violation of R.C. 2907.332(A)(5), and one -3-

count of pandering obscenity involving a minor, in violation of R.C. 2907.321(A)(5). After

negotiations with the State, Stutz agreed to plead guilty to four violations of R.C.

2907.332: Counts I and II, which were felonies of the second degree, and Counts XIX

and XX, which were felonies of the fourth degree. In return, the State agreed to dismiss

the remaining charges. Additionally, the parties agreed to a jointly-recommended

sentence of 5-10 years in prison.

{¶ 7} On June 22, 2022, Stutz appeared for disposition. The trial court sentenced

him to 8 to 12 years on Count I, 8 to 12 years on Count II, 18 months on Count XIX, and

18 months on Count XX. The court then ordered all the sentences to be served

concurrently for a total of 8 to 12 years in prison. The court also classified Stutz as a Tier

I and Tier II sex offender.

{¶ 8} Stutz has filed a timely appeal which raises three assignments of error.

II. Allied Offenses

{¶ 9} In his first assignment of error, Stutz argues that three of his convictions

(Counts I, XIX, and XX) should have merged because they constituted a single offense

with a single animus and harm.

{¶ 10} Initially, we note that it is the State’s position that Stutz has forfeited all but

plain error because his merger argument was not raised below. “An accused’s failure to

raise the issue of allied offenses of similar import in the trial court forfeits all but plain

error, and a forfeited error is not reversible error unless it affected the outcome of the

proceeding and reversal is necessary to correct a manifest miscarriage of

justice. Accordingly, an accused has the burden to demonstrate a reasonable probability -4-

that the convictions are for allied offenses of similar import committed with the same

conduct and without a separate animus.” State v. Rogers, 143 Ohio St.3d 385, 2015-

Ohio-2459, 38 N.E.3d 860, ¶ 3. After reviewing the record and Stutz’s arguments as to

whether the challenged counts were allied offenses, we will continue our analysis.

Merger

{¶ 11} When a defendant’s conduct supports multiple offenses, courts conduct an

allied offenses analysis to determine if the charges merge or if the defendant may be

convicted of separate crimes. This process is governed by statute, R.C. 2941.25, and

Ohio Supreme Court jurisprudence from State v. Ruff, 143 Ohio St.3d 114, 2015-Ohio-

995, 34 N.E.3d 892. R.C. 2941.25 provides:

(A) Where the same conduct by [a] 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.

The statute implements the protections of the Double Jeopardy Clauses of the United

States and Ohio Constitutions, which prohibit a second punishment for the same crime.

State v. Frazier, 2d Dist. Clark No. 2021-CA-46, 2021-Ohio-4155, ¶ 18. -5-

{¶ 12} “As a practical matter, when determining whether offenses are allied

offenses of similar import within the meaning of R.C. 2941.25, courts must ask three

questions when the defendant’s conduct supports multiple offenses: (1) Were the

offenses dissimilar in import or significance? (2) Were they committed separately? and

(3) Were they committed with separate animus or motivation? An affirmative answer to

any of the above will permit separate convictions. The conduct, the animus, and the import

must all be considered.” Ruff at ¶ 31; State v. Davison, 2d Dist. Montgomery No. 28579,

2021-Ohio-728, ¶ 29. Put another way, offenses are of dissimilar import when the

defendant’s actions constitute offenses involving separate victims or if the harm resulting

from each offense is separate and identifiable. Ruff at ¶ 23.

{¶ 13} Here, Stutz was convicted of two counts (Count I and Count II) of pandering

sexually oriented material involving a minor, a violation of R.C. 2907.332(A)(1), felonies

of the second-degree, and two counts (Count XIX and XX) of pandering sexually oriented

material involving a minor, a violation of R.C. 2907.332(A)(5), felonies of the fourth-

degree. And while there were four counts, they were based on only two images. Counts

I, XIX, and XX were based on an image with the identifier

“b98bb541d5f56e36b9f4bb495339b3b6,” while the image in Count II was identified as

“02a7139afba9c4ef9cd935c9115f5007.” The image in Count I was discovered on a

Samsung Galaxy J3 phone and on an SD card found in that phone inside Stutz’s towed

vehicle. The image in Count XIX was found on the SD card in the Samsung Galaxy phone,

and Count XX’s image was located on the Samsung Galaxy phone itself. The image that

was the genesis of Count II was found on the SD card initially discovered in a parking lot -6-

and then turned in to Moraine police. The same image was also located on the Samsung

Galaxy phone that was in Stutz’s towed vehicle.

{¶ 14} Stutz makes several arguments. His first is that because Counts I, XIX, and

XX were based on the same image, and because, he claims, the image was found in the

same place (the phone), the convictions were based on a singular act and should have

merged. He also reasons that the offenses were not dissimilar in import or significance

and were not committed with separate animus or motivation. We disagree.

{¶ 15} Ohio courts have uniformly held that child pornography offenses are of

dissimilar import when each offense involves a separate file or image. See e.g. State v.

Sanders, 2d Dist. Clark No. 2019-CA-86, 2021-Ohio-2431; State v. Stapleton, 4th Dist.

Pickaway No. 19CA7, 2020-Ohio-4479; State v. Mannarino, 8th Dist. Cuyahoga No.

98727, 2013-Ohio-1795. Because the image in Count II is different than that in Counts I,

XIX, and XX, merger was not available as to that Count.

{¶ 16} To determine whether the other counts should have merged, we must

analyze how the offenses were committed. Stutz was found to have downloaded the

pornographic material from the internet (and likely from another person, based on the

software found on his phone) onto his Samsung Galaxy phone and onto an SD card

where he then viewed and/or stored it. Based on that conduct, we conclude that two

separate acts occurred.

{¶ 17} We have held that a person who views images or videos downloaded from

the internet “possesses” that material in contravention of R.C. 2907.332(A)(5) (no person

shall knowingly solicit, receive, purchase, exchange, possess, or control any material that -7-

shows a minor participating or engaging in sexual activity, masturbation, or bestiality).

See State v. Hodge, 2d Dist. Miami No. 2013-CA-27, 2014-Ohio-1860, ¶ 10; State v.

Sanders, 2d Dist. Clark No. 2019-CA-86, 2021-Ohio-2431, ¶ 38.

{¶ 18} We have also said that downloading a video or picture creates a copy of the

original and that the act of downloading from the internet onto a device is sufficient

evidence for a trier of fact to conclude that the images were “reproduced” for the purposes

of R.C. 2907.322(A)(1) (no person shall create, record, photograph, film, develop,

reproduce, or publish any material that shows a minor participating or engaging in sexual

activity, masturbation, or bestiality). Id.; State v. Magnone, 2016-Ohio-7100, 72 N.E.3d

212, ¶ 50 (2d Dist.). Accord State v. Butler, 9th Dist. Summit No. 24446, 2009-Ohio-1866,

¶ 24; State v. Kraft, 1st Dist. Hamilton No. C060238, 2007-Ohio-2247, ¶ 92 (the State can

prove the defendant reproduced the material by presenting evidence he downloaded

images from the internet onto a hard drive).

{¶ 19} We conclude, then, that downloading (creating a copy or reproducing) an

image is a separate act – separate conduct – from simply possessing it. Stutz downloaded

the images (violating R.C. 2907.322(A)(1)) and then possessed and viewed them

(violating R.C. 2907.322(A)(5)).

{¶ 20} It is also noteworthy that the image from Count XIX was found in a different

physical location than the one from Count XX. Count XIX’s file was found on the SD card

which was in the phone, and Count XX’s image was on the phone itself. Even though the

SD card was in the phone, the image on the card would exist separately. The image on

the card could be viewed in almost any other device simply by inserting the card into it. -8-

The varying physical locations of the downloads further leads to the conclusion that there

was separate conduct.

{¶ 21} Because there was different conduct and the crimes were committed

separately, they were not allied offenses, and the convictions properly did not merge.

{¶ 22} The assignment of error is overruled.

III. Guilty Plea

{¶ 23} Stutz contends in his second assignment of error that his guilty plea was

not knowingly, intelligently, and voluntarily made. We disagree.

{¶ 24} To satisfy the requirements of due process, a guilty plea must be made

knowingly, intelligently, and voluntarily, and the record must affirmatively demonstrate as

much. State v. Harris, 2d Dist. Clark No. 2020-CA-29, 2021-Ohio-1431, ¶ 15. For a plea

to be made knowingly, intelligently, and voluntarily, the trial court must follow the

mandates of Crim.R. 11(C). State v. Brown, 2d Dist. Montgomery Nos. 24520, 24705,

2012-Ohio-199, ¶ 13. “[T]he rule ‘ensures an adequate record on review by requiring the

trial court to personally inform the defendant of his rights and the consequences of his

plea and determine if the plea is understandingly and voluntarily made.’ ” State v. Dangler,

162 Ohio St.3d 1, 2020-Ohio-2765, 164 N.E.3d 286, ¶ 11, quoting State v. Stone, 43 Ohio

St.2d 163, 168, 331 N.E.2d 411 (1975).

{¶ 25} Crim.R. 11(C)(2)(c) mandates that the trial court inform the defendant of the

constitutional rights he is waiving like the right to a jury trial, the right to confront witnesses,

the right to compulsory process, the right against self-incrimination, and the right to

require the State to establish guilt beyond a reasonable doubt. State v. Perdue, 2022- -9-

Ohio-722, 185 N.E.3d 683, ¶ 11 (2d Dist.). Strict compliance with the rule is required. A

failure to strictly comply with this part of the Rule invalidates the plea. Id.

{¶ 26} “A trial court must substantially comply with the notification of non-

constitutional rights contained in Crim.R. 11(C)(2)(a) and (b), and a defendant must show

prejudice before a plea will be vacated for failure to substantially comply with these

notifications.” State v. Easter, 2016-Ohio-7798, 74 N.E.3d 760, ¶ 8 (2d Dist.). “Substantial

compliance” means that under the totality of the circumstances the defendant

understands the implications of his plea and the rights he is giving up. State v. Thomas,

2d Dist. Montgomery No. 26907, 2017-Ohio-5501, ¶ 37; State v. Nero, 56 Ohio St.3d 106,

108, 564 N.E.2d 474 (1990). A defendant challenging a guilty plea on non-constitutional

grounds “must show a prejudicial effect” – in other words, “that the plea would otherwise

not have been entered.” Id. at ¶ 38.

{¶ 27} Both parties agree that Stutz was properly informed of his constitutional

rights; but Stutz argues that the trial court erred by not properly advising him of the

maximum potential sentence as required by Crim.R. 11(C)(2)(a). To determine if Stutz

understood the implications of his plea and the rights he was giving up, we must examine

the transcripts.

{¶ 28} There is no question that the plea hearing was messy. The attorneys for

both sides and the trial court struggled to reconcile the jointly-recommended sentence of

5 to 10 years with the indefinite sentence structure of the Reagan Tokes Act; there was

even discussion about changing the terms of the proposed sentence to better fit within

the structure imposed by the law. Eventually, though, Stutz indicated that he understood -10-

the sentencing range that could effectuate his 5 to 10-year deal and that if the trial court

sentenced him to 8 years (the longest minimum term available for second-degree

felonies), he could possibly serve as much as 12, although the maximum was not up to

the court.

{¶ 29} The colloquy then moved on to the advisement of maximum penalties, and

it is here that the trial court erred. Stutz was informed that the fourth-degree felonies were

not subject to the Reagan Tokes Act, so the maximum sentence for each was 18 months

for a consecutive total of 36 months. The court then incorrectly described the maximum

consecutive total for the second-degree felonies: “Now, I’m not going to do this because

of the plea agreement. But do you understand that if I did sentence you to the maximum

on the felonies of the second degree, being 8 to 12 years, and I ran one consecutive to

that, that could be 16 to * * * 24, okay?” Plea Tr. at 15. The court’s math was incorrect.

{¶ 30} According to R.C. 2929.144(B)(2), when imposing consecutive sentences

on Reagan Tokes qualifying offenses (generally first and second degree felonies not

carrying life-tails, in this case Counts I and II), “the court shall add all of the minimum

terms imposed on the offender * * * for a qualifying felony * * * and the maximum term

shall be equal to the total of those terms so added by the court plus fifty percent of the

longest minimum term * * * for the most serious felony being sentenced.” In other words,

when running qualifying offenses consecutively, the court must add up the minimum

terms of the Reagan Tokes qualifying offenses (in this case 8 years + 8 years = 16 years)

and then add 50% of the minimum for the most serious one being sentenced (50% of 8

years is 4 years). Based on the statute, then, the most Stutz could have been sentenced -11-

to on the second-degree felonies was 20 years (8 + 8 + 4 = 20), not 24 years as described

by the trial court. The aggregate sentence that Stutz faced if all counts were run

consecutively was a minimum of 19 years (18 months + 18 months + 8 years + 8 years)

and a maximum of 23 years (19 + 4).

{¶ 31} Despite the error in the explanation of the maximum penalty involved, the

record reveals that the trial court otherwise complied with the requirements of Crim.R.

11(C)(2)(a) and (b). Because there was partial compliance, Stutz must establish that the

trial court’s error caused prejudice. State v. Perdue, 2022-Ohio-722, 185 N.E.3d 683, ¶ 12

(2d Dist.). “In this context, prejudice is measured by whether the defendant would have

entered the plea if there had been full compliance[.]” Id.

{¶ 32} Even though Stutz was incorrectly advised about the maximum sentences

he was facing, it is reasonable to believe that if Stutz were willing to plead guilty to charges

with a purported maximum prison term of 24 years, he was even likelier to have pleaded

guilty to those with a maximum term of 23 years. Additionally, this was a jointly-

recommended sentence. The parties negotiated a sentence somewhere between 5 and

10 years, and the trial court imposed a sentence in which it will be presumed that Stutz

will be released after 8. Whether he is imprisoned beyond that will be up to him. Because

he cannot show prejudice (and never argues that he would not have pled guilty without

the mistake), the second assignment of error is overruled.

IV. Sex Offender Registry

{¶ 33} In his third assignment of error, Stutz asserts, and the State agrees, that he

was improperly classified as a Tier I sex offender on the fourth-degree felony offenses. -12-

We concur that this was a mistake.

{¶ 34} R.C. 2950.01(F)(1)(a) clearly states that a person who is convicted of or

pleads guilty to a violation of R.C. 2907.322 is a Tier II sex offender. The statute makes

no distinctions between the level of offenses in R.C. 2907.322 – it simply states that any

violation requires a Tier II classification. So it would not matter if one were convicted of

R.C. 2907.322(A)(1) as a second-degree felony or R.C. 2907.322(A)(5) as a fourth-

degree felony; any conviction under that statute requires in a Tier II classification. Further,

R.C. 2950.01(E), which defines Tier I sex offenses, makes no reference to crimes in

violation of R.C. 2907.322.

{¶ 35} In this case, even though Stutz was told during his plea hearing that he

would be classified as a Tier II sex offender (thus not affecting the voluntariness of his

plea), at the disposition, the trial court notified Stutz that he would be a Tier II sex offender

based on the R.C. 2907.322(A)(1) convictions and a Tier I sex offender on account of the

R.C. 2907.322(A)(5) convictions. Because any violation of R.C. 2907.322 leads to a Tier

II sex offender classification, Stutz’s classification as Tier I was in error and must be

reversed. The third assignment of error is affirmed.

V. Conclusion

{¶ 36} Having concluded that Stutz’s convictions should not have been merged

and that he made his plea in a voluntary manner, the judgment of the trial court will be

affirmed as to those issues. However, because it was an error for Stutz to be classified

as a Tier I sex offender, the court’s judgment on that matter will be reversed and

remanded for the limited purpose of reclassifying him as a Tier II sex offender on the -13-

fourth-degree felonies in Counts XIX and XX.

LEWIS, J. and HUFFMAN, J., concur.