STATEMENT OF CASE AND FACTS The State of Ohio has no objection to the Statement of the Case or the Statement of the Facts presented by the Defendant-Appellant as far as they go. However, there may be additional or different facts set forth in the argument to follow.
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ARGUMENT Proposition of Law No. 1
A DEFENDANT IS NOT PREJUDICED AND THUS IS NOT ENTITLED TO A NEW TRIAL WHEN A COUNT OF AN INDICTMENT FAILS TO SET FORTH A JUDICIALLY ENGRAFTED MENS REA, WHERE: (1) THE DEFENDANT IS AWARE OF THE OMITTED MENS REA ELEMENT; (2) HE AFFIRMATIVELY WAIVES ANY DEFECT AND AGREES TO PERMIT THE INDICTMENT TO BE AMENDED; AND, (3) JURY INSTRUCTIONS PROPERLY INCLUDE THE MISSING MENS REA.
The appellant’s claims that his conviction on the third count of the indictment was improper because that count of the indictment failed to state the mens rea of “recklessness” and no formal amendment of that count was requested by the prosecution, and therefore never granted by the trial court. He is wrong, as is his reliance on the Ohio Supreme Court’s decision in State v. Colon (2008), 118 Ohio St.3d 26, (Colon I). Defects in indictments – even when they fail to set forth some essential element of the crime – are generally to be analyzed for the presence of prejudicial harm to a defendant. See, generally, Crim.R. 7(D), Crim.R. 52, R.C.2941.08(K). Indeed, when a defendant fails to object to an indictment that is defective because the indictment did not include an essential element of the charged offense, a plain-error analysis is appropriate unless that omission was a part of a string of “multiple errors” that “permeated” the entire proceedings. Indeed this was made clear by the Ohio Supreme Court’s decision to reconsider Colon I. That court stated:
We assume that the facts that led to our opinion in Colon I are unique. As we stated in Colon I, the defect in the defendant’s indictment was not the only error that had occurred: the defective indictment resulted in several other violations of the defendant's rights. 118 Ohio St.3d 26, 2008-Ohio-1624, 885 N.E.2d 917, ¶ 29. In Colon I, we concluded that there was no evidence to show that the defendant had notice that recklessness was an element of the crime of
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robbery, nor was there evidence that the state argued that the defendant's conduct was reckless. Id. at ¶ 30. Further, the trial court did not include recklessness as an element of the crime when it instructed the jury. Id. at ¶ 31. In closing argument, the prosecuting attorney treated robbery as a strict- liability offense. Id. In a defective- indictment case that does not result in multiple errors that are inextricably linked to the flawed indictment such as those that occurred in Colon I, structural-error analysis would not be appropriate. As we stated in Colon I, when a defendant fails to object to an indictment that is defective because the indictment did not include an essential element of the charged offense, a plainerror analysis is appropriate. 118 Ohio St.3d 26, 2008-Ohio-1624, 885 N.E.2d 917, ¶ 23. Pursuant to Crim.R. 52(B), “plain errors” that affect a defendant’s substantial rights “may be noticed although they were not brought to the attention of the court.” In most defective- indictment cases in which the indictment fails to include an essential element of the charge, we expect that plain-error analysis, pursuant to Crim.R. 52(B), will be the proper analysis to apply. Applying structural-error analysis to a defective indictment is appropriate only in rare cases, such as Colon I, in which multiple errors at the trial follow the defective indictment. In Colon I, the error in the indictment led to errors that “permeate[d] the trial from beginning to end and put into question the reliability of the trial court in serving its function as a vehicle for determination of guilt or innocence.” Id. at ¶ 23, citing State v. Perry, 101 Ohio St.3d 118, 2004-Ohio-297, 802 N.E.2d 643, at ¶ 17. Seldom will a defective indictment have this effect, and therefore, in most defective indictment cases, the court may analyze the error pursuant to Crim.R. 52(B) plain-error analysis. Consistent with our discussion herein, we emphasize that the syllabus in Colon I is confined to the facts in that case. State v. Colon (2008) 119 Ohio St.3d 204, (Colon II), ¶¶ 6-8. (Italics added.) See, also State v. Vance (5th Dist.), 2008 WL 4286633, ¶ 55; State v. Buford (6th Dist.), 2008 WL 4684777, ¶ 10; State v. Matthews (3rd Dist.), 2008 WL 4615802, ¶ 16; and, State v. Dubose (1st Dist.), 2008 WL 4394715, ¶ 25. In the instant case, as the appellant concedes, the appellant formally waived any need to have the Grand Jury reindict him to correct the omission. In fact, a formal agreement to have the indictment amended was filed by the appellant. (Defendant’s Agreement to Amendment of Indictment, filed July 25, 2008.) At trial – also conceded by the appellant – the jury was properly instructed on the appropriate mens rea of recklessness. (Brief of appellant, p.4. Tr. Pp.
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360-61.)1 Indeed the entirety of the appellant’s claim is predicated upon the fact that a motion and entry formally amending the indictment failed to get done. However, this is hardly reversible error – for several reasons. First, Crim.R 7 permits an indictment to be amended “at any time, before, during, or after a trial.” Thus, the scope of the remedy available to the appellant, if he has one at all, is an order from this court remanding this matter to the trial court to formally enter an order amending the indictment. Second, the issue is waived. The appellant never raised any objection at the trial proceedings to the fact that the indictment, although agreeing to having it amended, did not technically get formally amended by way of motion and entry. See, generally, State v. Awan (1986), 22 Ohio St.3d 120, syllabus. Third, and finally, an indictment may be amended implicitly when the judge, jury, and the parties are aware of all of the elements of the offense. State v. Ivey (1994), 98 Ohio App.3d 249, 254. Indeed this Court has held as such. See, State v. Marschat (5th Dist.), 1991 WL 12812, pp. 1-2, (Indictment was “effectively amended” by proper jury instructions as “the amendment ha[d] been accomplished in contemplation of law independent of the paperwork.”), and, State v. Conley (5th Dist.), 2005 WL 1503589, ¶ 23, and f.n. 4. For each of these separate and independent reasons, the appellant’s first assignment of error lacks merit and should be overruled.
In addition, although not mentioned by the appellant, the Bill of Particulars properly included the element of “recklessly” as it relates to the third count. (Bill of Particulars, filed March 13, 2008.) 4
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Proposition of Law No. 2
A DEFENDANT MAY BE CONVICTED OF CHILD PORNOGRAPHY CHARGES WHEN HE SEEKS OUT PICTURES OF CHILD PORNOGRAPHY ON THE INTERNET, REGARDLESS OF WHETHER HE THEREAFTER TAKES STEPS TO “SAVE” OR “DOWNLOAD” PICTURES.
The appellant next claims that all three of his convictions are improper as being either supported by legally insufficient evidence, and/or against the manifest weight of the evidence. In State v. Jenks (1981), 61 Ohio St.3d 259, the Ohio Supreme Court set forth the standard of review when a claim of insufficiency of the evidence is made:
An appellate court’s function when reviewing the sufficiency of the evidence to support a criminal conviction is to examine the evidence admitted at trial to determine whether such evidence, if believed, would convince the average mind of the defendant’s guilt beyond a reasonable doubt. The relevant inquiry is whether, after viewing the evidence in a light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt. Id. at paragraph two of the syllabus. (Bold added.)
On the other hand, when reviewing a manifest weight claim the standard is different: [A] reviewing court is to examine the entire record, weigh the evidence and all reasonable inferences, consider the credibility of the witnesses and determine whether in resolving conflicts in the evidence, the trier of fact clearly lost its way and created such a manifest miscarriage of justice that the judgment must be reversed. The discretionary power to grant a new hearing should be exercised only in the exceptional case in which the evidence weighs heavily against the judgment.” State v. Thompkins (1997), 78 Ohio St.3d 380, 387.
In making his attacks the appellant alleges that the prosecution’s case failed in two respects: (1) failing to exclude the possibility that the pictures at issue were “virtual” children;
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and (2) failing to show that the appellant had the required mens rea for the respective offenses. 2 As support for both claims the appellant relies heavily upon two things: (1) his limited version of the expert testimony offered by the prosecution; and, (2) the appellant’s trial testimony (as opposed to his statements to police.) However, taking the entirety of the evidence presented in its proper context, the appellant’s convictions are supported by legally sufficient evidence AND are not against the manifest weight of the evidence.
Virtual children In the instant case, Diamond Boggs, an experienced forensic computer expert with the Bureau of Criminal Identification and Investigation, testified as a prosecution witness. Ms. Boggs testified that she had specific training related to detecting “virtual” child. (Tr. pp. 11718.) She used this training while looking at the computer pictures at issue in the instant case. She testified that in her expert opinion virtual photographs of children are not indistinguishable from real children. (Tr. p. 147.) She further expressed an opinion that she found no indication that the photos at issue were virtual. (Tr. pp. 146-47.) In fact, despite her training in the area of detecting photographs of virtual children she testified that there was “nothing that tells me that they are not real children.” (Tr. p. 183.) Moreover, her examination indicated that these photographs were accessed by someone (which other evidence showed was the appellant) who actually typed in internet “Google” searches specifically for terms related to child pornography (Tr. pp. 136, 142-43), and this resulted in access to pages, such as those using the word “Lolita”, which are indicative for known real child pornography. (Tr. pp. 142-43.) In fact access to some of these pages was
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“Knowingly” for counts one and two, and “recklessly” for count three. 6
repeated, thus making it clear to reasonable juror that an “accidental” viewing was not taking place. (Tr. p. 152.)
Awareness of Nature of Material Furthermore, the evidence in this case established a clear foundation for the jury to conclude, as it obviously did, that the appellant was fully aware that what he was accessing were websites catering to people interested in child pornography. For instance, Ms. Boggs testified that the appellant’s use of the computer involved 3 specifically included actually typing in to search for websites such as: amazing preteen; elite preteens; family incest tree; free young; young porn; innocent youth; preteen angels; and shameless preteens,(Tr. p. 133), and such things as: little angels, and top ten Lolita nude (Tr. p. 135), and pixyoung.com, teentray.com, tinyteenthongs.info. (Tr. pp. 142-43.) Indeed as to the last website, the appellant made a typographical error by initially typing tinyteenthungs.info, only to have to correct it. (Tr. p. 143.). Ms. Boggs correctly characterized the appellant’s access to these types of webpages as “[n]ot an accidental viewing of child pornography.” (Tr. p. 151.) That fact that Ms. Boggs could not absolutely exclude the shear possibility that the photographs at issue were not of real children is not dispositive. First, to require this would be contrary to Ohio law relating to experts. Cf. State v. Uselton (5th Dist.), 2004 WL 1059505, ¶ 78, (Jury verdict was not against manifest weight of the evidence simply because prosecution expert could not exclude possibility of braking have occurred prior to fatal accident.)
Although Ms. Boggs did not specifically attribute this computer use to the appellant, the other evidence, including the appellant’s own statement to police, clearly did. 7
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Second, relying upon Ms. Bogg’s concession that it is possible that the pictures involved might be virtual and she was unable to detect that fact ignores the Ohio Supreme Court’s observation in State v. Tooley (2007), 114 Ohio St.3d 366, ¶ 50, that stated that despite advances in technology, “[j]uries are still capable of distinguishing between real and virtual images.” See also, State v. Brady (2008), 119 Ohio St.3d 375, ¶ 34, (reaffirming this holding from Tooley.) Indeed, the Ohio Supreme Court has twice sanctioned the permissible inference contained in R.C. 2907.322(B)(3), which states: “In a prosecution under this section, the trier of fact may infer that a person in the material or performance involved is a minor if the material or performance, through its title, text, visual representation, or otherwise, represents or depicts the person as a minor.” Tooley, 114 Ohio St.3d at ¶¶ 2, 33; Brady, 119 Ohio St. 3d 375, ¶ 34. Third, to require such absolute certainty would also fly in the face of the clear pronouncement of the Ohio Supreme Court that specifically allows a jury to accept the prosecution’s theory of guilt while rejecting a theory, even a reasonable theory (which incidentally is not present herein), that would make the appellant innocent. In Jenks the Ohio Supreme Court stated:
Once the jury is properly instructed as to the heavy burden the state bears under the “guilt beyond a reasonable doubt” standard, the jury is then free to choose between competing constructions of the evidence. See Obregon, supra; Rodriguez, supra; and Bell, supra. We hold that when the state relies on circumstantial evidence to prove an element of the offense charged, there is no requirement that the evidence must be irreconcilable with any reasonable theory of innocence in order to support a conviction. (1981), 61 Ohio St.3d at 273. See also, State v. Jenkins (11th Dist.), 2007 WL 2351003, ¶ 71, (“Despite difference in parties’ respective theories, conviction does not stand contrary to the weight of the evidence
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merely because the jury found the state’s version more trustworthy and reliable.”); State v. Potts (11th Dist.), 1996 WL 297006, p. 4, (“[A] finding of guilty can be based upon circumstantial evidence even if that evidence is reconcilable with a reasonable theory of innocence.”) The appellant’s arguments relating to how a computer automatically “caches” files are irrelevant in light of the fact that the appellant clearly intended to access websites catering to people who wanted to see child pornography. Moreover, proof of a specific intent, or purposeful conduct, is not even necessary in order to sustain a conviction. As to the first two counts, the appellant need only act “knowingly”. “A person acts knowingly, regardless of his purpose, when he is aware that his conduct will probably cause a certain result or will probably be of a certain nature. A person has knowledge of circumstances when he is aware that such circumstances probably exist.” R.C. 2901.22(B). A reasonable juror could certainly find that the appellant was aware that searching for these terms and/or webpages would “probably result” in the accessing of child pornography. As to the third count, it is clear that the appellant acted “recklessly”. “A person acts recklessly when, with heedless indifference to the consequences, he perversely disregards a known risk that his conduct is likely to cause a certain result or is likely to be of a certain nature. A person is reckless with respect to circumstances when, with heedless indifference to the consequences, he perversely disregards a known risk that such circumstances are likely to exist.” R.C. 2901.22(C). The appellant, as demonstrated by his search terms, clearly “perversely disregard[ed] a known risk” that the websites he was accessing contained child pornography. In this case the appellant – notwithstanding his efforts during his trial testimony to retreat from these damaging admissions – told the police he specifically viewed pornographic sites that
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he knew had pictures of underage children. Indeed the following exchange appears in his interview with Det. Robert Huffman of the Newark Police Department:
RH: MH: RH: MH:
Ok. Would you agree that some of the sites that you viewed did have children … Yes, yes there did … U...nderage children? … but I … yes. Uh I did not know that just a click and a punch was, was illegal but it obviously is and um … Ok. But you … the click and the punch lead to you viewing these photos. Right, right. I mean they came up yes when I clicked and punched, these pictures came up.
RH: MH:
(State’s Exhibits 8-A [a transcript], page 4 of 7; and 8-B [a CD].)
Certainly a reasonable trier of fact can understand from this exchange that the appellant was admitting to having taken affirmative steps to cause the computer to specifically access child pornography so that he could view it. Once he accessed these photographs for viewing, he clearly was guilty of “procure[ing], possess[ing], or control[ing]” them as stated in the first count. Likewise he was guilty of “solicit[ing], receiv[ing] …possess[ing] or control[ing]” them as alleged in the second count. And he was guilty of “possess[ing] or view[ing]” them as alleged in the third count. The reason: because once he accessed them for viewing purposes he had the ability to save them, copy them, e- mail them, print them, or download them. Whether he actually chose to do any of these things or not, his ability to do so was sufficient as Ohio law has for some time defined possession, at a minimum, to include the ability to exercise “dominion and control” over an item. See, for example, State v. Hankerson (1982), 70 Ohio St.2d 87 90. See also, State v. Harrison (12th Dist.), 2007 WL 4554974, ¶49, (Discovery of child pornography in
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“unallocated space” of computer permitted jury to infer that defendant had possessed child pornography.) Further “dominion and control” is shown (as is consciousness of guilt) by evidence that the appellant attempted to delete his browsing history after he was discovered looking at pornography on a company computer. (Tr. p. 64.) The only thing the appellant presented to the police as a supposed “defense” of his actions is that despite his having knowingly accessed child pornography he did not know that simply viewing child pornography (as opposed, apparently, to copying, downloading, purchasing, etc.) on the Interne t was itself illegal. As if the above admission of knowing/reckless conduct relating to his accessing child pornography is not clear enough, the appellant’s meaning in making these admissions is further clarified when put in context with statements later in his interview with police where, in an apparent effort to make him seem somehow less morally culpable, he describes his addition to pornography by adding the caveat that:
“It …it’s never been to a point of touching a kid or any kid that I see, you, you know. There’s no attraction or any, you know, uh young lady. Um … always been, you know … viewing pictures. …. I am more a viewing thing, than an actual physical thing, you know.” (State’s Exhibits 8-A [a transcript], page 6 of 7; and 8-B [a CD]. See, also, Tr. p. 301.)
Why would the appellant need to clarify the extent of his supposed addiction to pornography by specifically excluding “touching” a child, unless it was crystal clear that the appellant and the detective both understood that the appellant was admitting to have accessed and viewed child pornography?
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Inapposite Federal Cases The appellant’s reliance on various federal cases has no merit. Instead, they actually support the appellant’s conviction. 4 For instance, in United States v. Kuchinski (9th Cir. 2006), 469 F.3d 853, the court, quoting language from another case cited by the appellant, United States v. Romm (9th Cir. 2006), 455 F.3d 990, which clearly stated that “[i]n the electronic context, a person can receive and possess child pornography without downloading it, if he or she seeks it out and exercises dominion and control over it.” 469 F.3d at 861, quoting Romm at 455 F.3d at 998. Indeed the only fault that the court in Kuchinski found with what the trial court did is that it used additional pictures that were in the computer’s cache in formulating sentencing guidelines. 5 In Romm, the court actually agreed with the appellee’s observation noted above that “once [the appellant] accessed them for viewing purposes he had the ability to save them, copy them, e- mail them, print them, or download them. Whether he actually chose to do any of these things or not his ability to do so was sufficient as Ohio law has for some time defined possession, at a minimum, to include the ability to exercise ‘dominion and control’ over an item.” (See page 10, above.) In similar terms, the court in Romm specifically stated: “Here, we hold Romm exercised dominion and control over the images …. While the images were displayed on Romm’s screen … he had the ability to copy, print or email the images to others.” 455 F.3d at 998. They are especially inapplicable to the appellant’s conviction as it relates to the third count. That count prohibited the “viewing” of child pornography. The federal statutes at issue in the cases cited by the appellant do not appear to prohibit this. 5 In the instant case, the prosecution was not predicated upon a specific count applying to each of one specific picture. Instead, each count applied to potentially a number of photos provided they fell into one of three types: (1) they were obscene and had a minor as a participant [count one]; (2) regardless of whether they fit the legal definition of being “obscene” they nonetheless showed a minor engaging in sexual activity, masturbation, or bestiality [count two]; and, (3) they simply showed a minor in a state of nudity regardless of issues of obscenity or sexual activity [count three]. 12
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Similarly, United States v. Miller (3rd Cir. 2008), 527 F.3d 54, provides the appellant no help. In that case the defendant did not dispute the fact that the evidence proved that he “possessed” child pornography. Instead he merely challenged whether he “received” child pornography – an offense under a different section of the federal statute. 527 F.3d at 62. In the instant case all three counts of the indictment included prohibitions against “possessing” child pornography, albeit, differing types of child pornography (i.e. those that are obscene, those involving sexual activity, and those involving simple nudity). Since each count of the indictment included, at a minimum, a “possession” element in the alternative, whether or not the appellant also “received” child pornography (the only issue in Miller) is of no relevance. 6 The appellant’s argument is predicated solely upon the appellant’s trial testimony – testimony that was nothing short of a shear testament to feigned ignorance; testimony which was clearly inconsistent with his statements to police, and the computer usage history discovered by Ms. Boggs. The jury was clearly not required to accept as gospel any part of the appellant’s selfproclaimed computer illiteracy. CONCLUSION
Based upon the foregoing, the State of Ohio has shown that the appellant has no meritorious assignment of error. Thus, the trial court’s actions should be affirmed in all respects.
Respectfully submitted, ___________________________ Kenneth W. Oswalt, Reg. #0037208 Prosecuting Attorney “When a jury returns a guilty verdict on an indictment charging several acts in the conjunctive … the verdict stands if the evidence is sufficient with respect to any one of the acts charged.” Turner v. United States (1970), 396 U.S. 398, 420. See also, Griffin v. United States (1991), 502 U.S. 46, 56-57; and, United States v. Miller (1985), 471 U.S. 130, 136. 13
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Licking County Prosecutor’s Office 20 South Second Street – 4th Floor Newark, Ohio 43055 (740) 670-5255 (740) 670-5241 [fax]
CERTIFICATE OF SERVICE The undersigned hereby certifies that a copy of the foregoing has been mailed this _____ day of _____________, 2008, to Robert C. Bannerman, Attorney for Appellant, P.O. Box 77466, Columbus, Ohio 43207-0098.
Kenneth W. Oswalt, Reg. #0037208 Prosecuting Attorney
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APPENDIX
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