[Cite as State v. Abraham,

.]

STATE OF OHIO ) IN THE COURT OF APPEALS )ss: NINTH JUDICIAL DISTRICT COUNTY OF SUMMIT )

STATE OF OHIO C.A. No. 26258

Appellee

v. APPEAL FROM JUDGMENT ENTERED IN THE NADEEM ABRAHAM COURT OF COMMON PLEAS COUNTY OF SUMMIT, OHIO Appellant CASE No. CR 10 10 2957

DECISION AND JOURNAL ENTRY

Dated: September 19, 2012

WHITMORE, Presiding Judge.

{¶1} Defendant-Appellant, Nadeem Abraham, appeals from his convictions in the

Summit County Court of Common Pleas. This Court affirms.

I

{¶2} Shortly after Easter in 2010, I.D. reported to her teacher that her grandfather,

Abraham, had sexually abused her. The school contacted I.D.’s mother and an investigation

ensued. According to I.D., Abraham had touched her genitals with his hands and mouth multiple

times over the course of several years. The police spoke with Abraham and, in the course of

their investigation, decided to search the desktop computer from his home. A forensic analysis

of the computer uncovered images that appeared to depict two minors engaging in sexual activity

and another naked minor.

{¶3} A grand jury indicted Abraham on the following counts: (1) rape, in violation of

R.C. 2907.02(A)(1)(b); (2) two counts of gross sexual imposition, in violation of R.C. 2

2907.05(A)(4); (3) illegal use of a minor in a nudity-oriented material or performance, in

violation of R.C. 2907.323(A)(3); (4) pandering obscenity involving a minor, in violation of R.C.

2907.321(A)(5); and (5) pandering sexually oriented matter involving a minor, in violation of

R.C. 2907.322(A)(5). The State later dismissed one count of gross sexual imposition and the

count for pandering obscenity, leaving the remaining four counts for trial.

{¶4} Abraham filed a motion to sever the rape and gross sexual imposition counts from

the other two counts, arguing that the two sets of counts were unrelated and that their joinder

would cause him undue prejudice. The trial court denied his motion to sever, and the matter

proceeded to a jury trial. At the conclusion of the trial, the jury found Abraham guilty on all four

counts. Abraham filed a motion for new trial on the basis that the State used his pre-arrest

silence during the trial to infer his guilt, but the trial court denied Abraham’s motion. The court

sentenced Abraham to fifteen years to life in prison and classified him as a Tier III sexual

offender.

{¶5} Abraham now appeals from his convictions and raises five assignments of error

for our review. For ease of analysis, we rearrange several of the assignments of error.

II

Assignment of Error Number Five

THE TRIAL COURT COMMITTED PREJUDICIAL ERROR BY DENYING DEFENDANT’S MOTION FOR SEVERANCE OF THE GROSS SEXUAL IMPOSITION AND RAPE COUNTS FROM THE OTHER COUNTS IN THE INDICTMENT AS TRIED HEREIN, IN VIOLATION OF DEFENDANT’S RIGHTS AS GUARANTEED TO HIM BY THE DUE PROCESS PROVISION OF SECTION I OF THE FOURTEENTH AMENDMENT TO THE U.S. CONSTITUTION, AND THE DUE PROCESS PROVISION OF O. CONST. § 16.

{¶6} In his fifth assignment of error, Abraham argues that the trial court erred by

denying his motion to sever certain counts in his indictment. Specifically, he argues that the 3

court should have severed his trial on the rape and gross sexual imposition counts from the

counts for the illegal use of a minor in a nudity-oriented material or performance and pandering

sexually oriented matter involving a minor. We disagree.

{¶7} Initially, we must consider whether Abraham forfeited his challenge to the trial

court’s ruling on his motion to sever. “It is well-settled that the law favors joinder.” State v.

Merriweather, 9th Dist. No. 97CA006693,

, *3 (May 6, 1998). Crim.R. 8

governs the joinder of multiple offenses in a single indictment while Crim.R. 14 governs the

joinder of offenses, whether in a single or separate indictment(s), for trial. State v. Hatfield, 9th

Dist. No. 23716,

. If a defendant seeks to challenge his indictment

pursuant to Crim.R. 8 on the basis that multiple counts should not have been joined in a single

indictment, he need not renew a motion to sever. Id. at ¶ 14-15. “To preserve a claimed error

under Crim.R. 14, however, a defendant must renew his * * * motion to sever either at the close

of the State’s case or at the conclusion of all of the evidence.” State v. Miller, 9th Dist. Nos.

10CA009922 & 10CA009915,

. A renewal of the motion is necessary

because, unlike a Crim.R. 8 analysis, a Crim.R. 14 analysis examines any prejudice resulting

from the joinder in light of the evidence introduced at trial. See Hatfield at ¶ 14-15, citing United

States v. Terry,

(9th Cir. 1990). A defendant’s failure to renew his

Crim.R. 14 motion “results in a forfeiture of the issue on appeal.” State v. Vu, 9th Dist. No.

11CA0042-M,

.

{¶8} In his motion to sever, Abraham wrote the following: “Pursuant to Criminal Rule

14, relating to relief from prejudicial joinder, Defendant moves the Court for severance, for trial

purposes herein, of Counts 1 and 2 from Counts 3 and 4.” (Emphasis added.) Moreover, in his

request for relief at the conclusion of his motion, Abraham requested “that the Court order 4

separate trials for the first two counts from the last two counts of the indictment * * *.”

(Emphasis added.) A motion that only requests counts to be tried separately falls squarely within

the purview of Crim.R. 14. Hatfield at ¶ 15. Abraham was required, therefore, to renew his

motion to sever either at the close of the State’s case or at the end of trial. Miller at ¶ 17. The

record reflects that Abraham never renewed his motion after the trial commenced. As such, he

forfeited his motion to sever. Vu at ¶ 37.

{¶9} Although Abraham forfeited his motion to sever, he argues in the alternative that

the trial court’s denial of his motion amounted to plain error. Because forfeiture does not

foreclose a claim of plain error, we analyze Abraham’s alternative argument. See Miller at ¶ 18.

Under Crim.R. 52(B), “[p]lain errors or defects affecting substantial rights may be noticed

although they were not brought to the attention of the court.” “Notice of plain error under

Crim.R. 52(B) is to be taken with the utmost caution, under exceptional circumstances and only

to prevent a manifest miscarriage of justice.” State v. Long,

(1978), paragraph

three of the syllabus. “A defendant claiming error * * * under Crim.R. 14 has the burden of

affirmatively showing that his rights were prejudiced * * *.” State v. Patel, 9th Dist. No. 24024,

, quoting State v. Torres,

(1981), syllabus. “Only an

actual injustice, and not merely a risk of injustice, is sufficient.” State v. Groce Hopson, 9th

Dist. No. 03CA008377,

.

{¶10} Two of the charges against Abraham arose as a result of the sexual abuse

allegations brought to light by his granddaughter, and the remaining two charges arose from

pornographic images taken from his computer. Abraham argues that the court should have

severed the two sets of counts because there was no evidence that he used the computer in

connection with the offenses against his granddaughter or that any of the images on his computer 5

were of her. “When a defendant claims that he was prejudiced by the joinder of multiple

offenses, a court must determine (1) whether evidence of the other crimes would be admissible

even if the counts were severed, and (2) if not, whether the evidence of each crime is simple and

distinct.” State v. Schaim,

(1992).

{¶11} Abraham fails to analyze either of the factors set forth in Schaim. The State only

searched Abraham’s computer as a result of the allegations brought to light by his

granddaughter. See State v. Wigle, 9th Dist. No. 25593,

(joinder

appropriate, in part, because one charge occurred while officers were investigating the other

charge). There also was testimony that the pornographic images investigators uncovered on the

computer were, in fact, children. Abraham makes no attempt to explain why evidence that his

computer contained child pornography would be inadmissible in his trial for sexually abusing a

child victim. See State v. Zoubaier, 9th Dist. No. 26049,

; App.R.

16(A)(7). Further, he makes no attempt to analyze whether the evidence with regard to each set

of charges was simple and distinct. Zoubaier at ¶ 12-13; App.R. 16(A)(7). He only argues that

the court erred by allowing the joinder of the counts for trial because the admission of

pornographic images during a sexual abuse trial has a prejudicial effect. Yet, evidence is not

inadmissible per se simply because it is prejudicial in nature. Moreover, “[w]here the evidence

of each of the joined offenses would be admissible at separate trials, severance is not required

because prejudice due to the * * * inference of a criminal disposition is largely absent.” State v.

Hamblin,

(1988).

{¶12} This Court will not undertake an analysis of the Schaim factors on behalf of

Abraham when he has not done so. As this Court has repeatedly held, “[i]f an argument exists

that can support [an] assignment of error, it is not this [C]ourt’s duty to root it out.” Cardone v. 6

Cardone, 9th Dist. No. 18349,

, *8 (May 6, 1998). Abraham has not shown

that the trial court committed plain error by denying his motion to sever. Consequently, his fifth

assignment of error is overruled.

Assignment of Error Number Four

THE TRIAL COURT COMMITTED PREJUDICIAL ERROR BY DENYING DEFENDANT’S MOTIONS FOR ACQUITTAL WHICH WERE MADE AT THE CLOSE OF THE STATE’S EVIDENCE AND THE CLOSE OF ALL EVIDENCE, SINCE THE EVIDENCE IN THIS CASE IS INSUFFICIENT AS A MATTER OF LAW TO SUPPORT A CONVICTION; ACCORDINGLY, DEFENDANT’S CONVICTION WAS IN DENIAL OF HIS RIGHT TO DUE PROCESS, AS GUARANTEED TO HIM BY SECTION I OF THE FOURTEENTH AMENDMENT TO THE U.S. CONSTITUTION, AND THE DUE PROCESS PROVISION OF O. CONST. § 16.

{¶13} In his fourth assignment of error, Abraham argues that his convictions are based

on insufficient evidence, and that the trial court erred by denying his motion for acquittal. We

disagree.

{¶14} In order to determine whether the evidence before the trial court was sufficient to

sustain a conviction, this Court must review the evidence in a light most favorable to the

prosecution. State v. Jenks,

(1991).

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.

at paragraph two of the syllabus; see also State v. Thompkins,

(1997).

“In essence, sufficiency is a test of adequacy.” Thompkins,

.

{¶15} While Abraham requests that this Court review the evidence for all of his

offenses, his sufficiency argument focuses exclusively on his convictions for the illegal use of a 7

minor in a nudity-oriented material or performance and pandering sexually oriented matter

involving a minor. He does not offer any argument as to why his convictions for rape or gross

sexual imposition are based on insufficient evidence. See App.R. 16(A)(7). I.D., who was ten

years old at the time of trial, testified at trial and described multiple instances in which Abraham

removed her clothing from the waist down and either touched her genitals with his hands or

performed oral sex on her. See R.C. 2907.02(A)(1)(b) (rape defined as sexual conduct with a

person less than thirteen years of age); R.C. 2907.05(A)(4) (gross sexual imposition defined as

sexual contact with a person less than thirteen years of age). “[I]n sex offense cases, * * * the

testimony of the victim, if believed, is sufficient to support a conviction, even without further

corroboration.” State v. Melendez, 9th Dist. No. 08CA009477,

, ¶ 15, quoting

State v. Willard, 9th Dist. No. 05CA0096-M,

. This Court will not inquire

further into the sufficiency of Abraham’s rape and gross sexual imposition convictions when he

has not done so. App.R. 16(A)(7); Cardone,

, at *8. Consequently, we confine

the remainder of our analysis to his remaining two convictions.

{¶16} “No person shall * * * [p]ossess or view any material or performance that shows a

minor who is not the person’s child * * * in a state of nudity * * *.” R.C. 2907.323(A)(3). The

nudity depicted must constitute a “lewd exhibition or involve[] a graphic focus on the genitals.”

State v. Young,

(1988), paragraph one of the syllabus. “Because R.C.

2907.323 does not specify any degree of culpability, the degree of culpability required to commit

the offense is recklessness.” State v. Tooley,

,

, ¶ 37.

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. 8

R.C. 2901.22(C). An image that appears on a computer monitor constitutes “material” for

purposes of R.C. Chapter 2907. R.C. 2907.01(J). The term “minor” means “a person under the

age of eighteen.” R.C. 2907.01(M). Whoever commits the foregoing offense is guilty of the

illegal use of a minor in a nudity-oriented material or performance. R.C. 2907.323(B).

{¶17} “No person, with knowledge of the character of the material or performance

involved, shall * * * [k]nowingly solicit, receive, purchase, exchange, possess, or control any

material that shows a minor participating or engaging in sexual activity * * *.” R.C.

2907.322(A)(5). “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). The phrase “sexual activity” includes both sexual conduct and sexual contact, as

defined by R.C. 2907.01. R.C. 2907.01(C). Whoever commits the foregoing offense is guilty of

pandering sexually oriented matter involving a minor. R.C. 2907.322(C).

{¶18} Detective Rinear seized the desktop computer from Abraham’s home with his

consent and delivered it to the Summit County Sheriff’s Department for forensic analysis.

Detective Daniel Sladek, a forensic specialist in computers, analyzed the computer’s hard drive

and uncovered the two particular images that resulted in Abraham’s charges. The first image,

State’s Exhibit 7, was a JPEG file for which Detective Sladek was able to find a creation and

access date of March 26, 2010. He also was able to find a modify date of April 3, 2010, meaning

that the image could have been copied from another place or modified in some manner on that

date. Detective Sladek opined within a reasonable degree of scientific certainty that the image

most likely appeared on the computer’s screen and then was saved in a temporary internet file.

Detective Sladek was unable to be more definitive in his conclusion because he could not 9

eliminate the possibility that Exhibit 7 could have been stored on the computer’s hard drive

without ever appearing on the screen. Even so, he testified that doing so would have required the

manual copying of the image to the computer via an external media source, such as a CD or a

thumb drive.

{¶19} The second image Detective Sladek found, State’s Exhibit 8, was also a JPEG

file, but did not have a creation, access, or modification date. Detective Sladek located the image

in the hard drive’s unallocated space, which he described as the space in which a computer stores

deleted items until those items are overwritten by other data. Because Detective Sladek only

found Exhibit 8 in the computer’s unallocated space, it was not possible for him to determine

how the image might have gotten on the computer. He did testify, however, that Abraham had a

particular user account on the computer and that the last account that had been accessed at the

time the police confiscated the computer was Abraham’s.

{¶20} The State presented the two images taken from Abraham’s computer to the jury.

Exhibit 7 depicts a small female in a seated position bending over the lap of another individual,

who appears to be a pre-adolescent male. The male, who is seated next to the female, has his

arm draped over the female’s back while his hand cups her chest and pulls her closer. Much of

the female’s hair covers her face in the picture, but she appears to be performing fellatio on the

male. Exhibit 8 depicts a lone female sitting in a bathtub filled with bubbles. The female is

naked in the image, although the bubbles in the bathtub and her left hand obscure her genital

area. In the image, the female looks straight to camera with pursed lips and blows bubbles from

a small bubble wand that she holds with her right hand. The female’s chest is clearly visible in

the image. 10

{¶21} Dr. Richard Daryl Steiner testified that he is the medical director of the CARE

Center at Akron Children’s Hospital. Dr. Steiner viewed Exhibits 7 and 8 on the State’s behalf

in order to offer his opinion as to the age of the three individuals depicted in the images. In

forming an opinion, Dr. Steiner considered several factors such as the body proportions of the

individuals and their sexual development. Dr. Steiner explained that criteria exist for body

proportion ratios such that one can compare the proportions of the head to the torso and the torso

to the extremities. In assessing the body proportions of an individual depicted in an image, Dr.

Steiner testified that he also assesses the individual for signs of any congenital abnormalities that

might result in irregular proportions. As to sexual development, Dr. Steiner stated that he relies

upon the Tanner stages of development, a recognized method for categorizing individuals into

five stages of sexual development with Stage 1 representing a child without any sexual

development and Stage 5 representing a fully developed adult. Dr. Steiner opined that all three

of the individuals depicted in Exhibits 7 and 8 were under the age of eighteen. Specifically, he

determined that the female depicted in Exhibit 7 was less than ten years old, the male depicted in

Exhibit 7 was approximately ten to fifteen years old, and the female depicted in Exhibit 8 was

less than ten years old.

{¶22} Abraham testified at trial and admitted that he had used the desktop computer

from his home to view pornography. See Jenks, 61 Ohio St.3d at paragraph two of the syllabus

(sufficiency analysis examines all of the evidence admitted at trial). He also admitted that it was

possible that he had viewed Exhibits 7 and 8 on the computer before, but stated that he could not

remember one way or another because the images were not memorable to him.

{¶23} Viewing all of the evidence in a light most favorable to the prosecution, a rational

trier of fact could have determined that the State proved the elements of Abraham’s convictions 11

beyond a reasonable doubt. Dr. Steiner testified that Exhibit 7 portrays two minors engaging in

oral sex while Exhibit 8 portrays a naked minor in a suggestive pose. Having viewed the images

in conjunction with Dr. Steiner’s testimony, we conclude that the State presented sufficient

evidence that Exhibits 7 and 8 depicted minors, two of whom were engaging in sexual activity

and one of whom was in a state of nudity that constituted a lewd exhibition. See State v. Casto,

9th Dist. No. 2977-M,

, *4 (Sept. 13, 2000), quoting State ex rel. Rear Door

Bookstore v. Tenth Dist. Court of Appeals,

(1992) (“The term ‘lewd’ has

been defined as ‘sexually unchaste or licentious * * * lascivious * * * inciting to sensual desire

or imagination * * *.’”). We further conclude that the State presented sufficient evidence that

Abraham knowingly possessed or controlled Exhibit 7 and recklessly possessed Exhibit 8. There

was testimony that both images were found on his computer. Exhibit 7 had a creation, access,

and modification date, and Exhibit 8 had been deleted at some point, thereby sending it to the

hard drive’s unallocated space. Abraham himself admitted that he had used the computer to

view pornography and that it was possible he had viewed Exhibits 7 and 8. Viewing the

evidence in a light most favorable to the State, we conclude that the State presented sufficient

evidence to support Abraham’s convictions. As such, his fourth assignment of error is overruled.

Assignment of Error Number Three

DEFENDANT-APPELLANT’S CONVICTION IN THIS CASE IS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE AND MUST BE REVERSED, AS IN VIOLATION OF DEFENDANT’S RIGHT TO DUE PROCESS AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE U.S. CONSTITUTION AND O. CONST. ART. I, § 16.

{¶24} In his third assignment of error, Abraham argues that his convictions are against

the manifest weight of the evidence. We disagree. 12

{¶25} In determining whether a conviction is against the manifest weight of the

evidence an appellate court:

must review the entire record, weigh the evidence and all reasonable inferences, consider the credibility of 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 conviction must be reversed and a new trial ordered.

State v. Otten,

(9th Dist. 1986). A weight of the evidence challenge

indicates that a greater amount of credible evidence supports one side of the issue than supports

the other. Thompkins,

. Further, when reversing a conviction on the basis

that the conviction was against the manifest weight of the evidence, the appellate court sits as the

“thirteenth juror” and disagrees with the factfinder’s resolution of the conflicting testimony.

Therefore, this Court’s “discretionary power to grant a new trial should be exercised only in the

exceptional case in which the evidence weighs heavily against the conviction.” State v. Martin,

(1st Dist. 1983). See also Otten,

.

Rape and Gross Sexual Imposition

{¶26} I.D. was ten years old at the time of trial and testified that Abraham had sexually

abused her multiple times over the years. All of the witnesses who testified at trial agreed that

I.D., her younger brother, and her older sister, routinely visited her grandparents’ house once a

week or more and often spent the night there before I.D. disclosed that she had been sexually

abused. I.D. stated that Abraham would take her into either the garage or the computer room of

his house before removing her clothing from the waist down. Abraham would then either touch

I.D. on her “front private part” with his hands or perform oral sex on her. I.D. specified that

Abraham touched her on the part of the body that “[y]ou urinate from” and that it was

uncomfortable, “felt weird,” and sometimes it hurt afterwards. According to I.D., when her 13

grandfather was touching her he “asked [her] if [she] liked it,” but she would just look up and not

say anything. I.D. indicated that she decided to tell her teacher at school about the abuse after

she watched the sexual abuse program that the school guidance counselor presented.

{¶27} After I.D. reported that she had been abused, she met with a social worker from

Summit County Children Services, had an interview with a social worker from the CARE Center

at Akron Children’s Hospital, and underwent a physical examination. Kelly Lynn Aloisi

conducted I.D.’s preliminary interview at her father’s home and described I.D. as sad,

embarrassed, and frightened. Although I.D.’s later physical examination was normal, Donna

Abbott, the nurse practitioner who conducted the exam, testified that the normal results of I.D.’s

exam were not inconsistent with the form of abuse she had reported. Nurse Abbott also testified

that it is not unusual for victims of abuse to wait a substantial period of time before reporting the

abuse. Much like her testimony at trial, in her interview with Cathy Beckwith-Laube at the

CARE Center, I.D. described multiple occasions where Abraham sexually abused her with either

his hands or his mouth.

{¶28} Marie Abraham, Abraham’s wife, described I.D. as a child who was always

seeking attention and competing with her siblings for her grandfather’s affection. Marie testified

that when her three grandchildren visited, I.D. and her brother were inseparable and that she

could not recall a single time in the course of the nearly two-year period covered by the

indictment that Abraham was alone in the home with I.D. Marie also testified that I.D.’s attitude

towards her grandparents had changed since her parents had separated and that she would ask her

grandfather why he did not like her father. Even so, after she and her husband learned of I.D.’s

allegations and spoke to one another, Marie testified that Abraham thought perhaps I.D. was

“probably mad at [him] because [he] was angry with the way she[ had been] keeping her room.” 14

Marie also admitted that she mostly stayed with I.D.’s older sister on one level of the house to

help care for her when the children came over.

{¶29} Abraham testified in his own defense and denied ever abusing I.D. Abraham

stated that he mostly took part in fun activities with his grandchildren when they visited and that

his wife mainly assumed the caretaking role. Abraham stated that he had always disapproved of

his daughter’s relationship with I.D.’s father and that I.D. would ask him questions about why he

hated her father. Abraham agreed with his wife’s assessment that I.D. and her brother were

competitive with one another and that it was difficult to be with one without the other also being

there. Abraham admitted, however, that he was able to keep from his wife the fact that he had

used the desktop computer in the home office to view pornography. Abraham stated that he

would view the pornography when his wife was upstairs in a different part of the house. As

previously discussed, when the police searched Abraham’s computer, they found images of child

pornography.

{¶30} I.D.’s mother, Deanne, also testified. Deanne admitted that her former husband

and Abraham had never gotten along, but also testified that she had divorced her husband a little

over four years before the trial. She also testified that, while her oldest daughter required a great

deal of care due to the fact that she suffered from Rett Syndrome, she had suffered from the

condition since a very early age and I.D. loved her sister and enjoyed helping her. Deanne

testified that after I.D. told her about the abuse she regularly took I.D. to a psychologist over the

course of a year so that she could receive therapy to address the abuse.

{¶31} Because there was no physical evidence of abuse, the jury in this matter

essentially reached a decision based on credibility. A jury is “entitled to believe all, part, or none

of the testimony of each witness,” and “[a]n appellate court must give deference to the jury’s 15

evaluation of the evidence and credibility of witnesses.” State v. Woolridge, 9th Dist. No.

26196,

. Based on our review of the record, we cannot conclude that this

is the exceptional case where the jury lost its way by convicting Abraham of rape and gross

sexual imposition. The jury chose to believe I.D.’s version of the events and rejected the theory

that she fabricated these allegations and endured interviews, examinations, trial, and over a year

of therapy either because she was angry at her grandfather or desired attention from her family.

“We will not overturn the verdict on a manifest weight challenge simply because the jury chose

to believe the evidence offered by the prosecution.” State v. Morgan, 9th Dist. No. 22848, 2006-

Ohio-3921, ¶ 35. Consequently, we reject Abraham’s argument that his rape and gross sexual

imposition convictions are against the manifest weight of the evidence.

Illegal Use of a Minor and Pandering Sexually Oriented Material

{¶32} This Court previously described the evidence the State set forth in support of

Abraham’s remaining convictions in his sufficiency assignment of error. In its case-in-chief, the

defense presented the testimony of Dr. Steven Michael Klein, a gynecologist. Dr. Klein also

viewed Exhibits 7 and 8 and opined that he could not determine or estimate the ages of any of

the individuals depicted in those images. Dr. Klein testified that it is notoriously difficult to

estimate chronological age and methods for doing so are not exact because people develop at

different rates. Dr. Klein would only testify that the individuals depicted in Exhibits 7 and 8

appeared “to be biologically not as far advanced as other[s] * * * on the Bell-shaped curve of

pubescence * * *.”

{¶33} Having viewed Exhibits 7 and 8 and listened to Dr. Steiner’s testimony, the jury

could have rejected Dr. Klein’s opinion and believed that the exhibits depicted minors. Jurors

are not obligated to believe an expert merely because the person is one. Waugh v. Chakonas, 9th 16

Dist. Nos. 25417 & 25480,

. Moreover, the jurors could have believed that

Abraham knowingly possessed or controlled Exhibit 7 and recklessly possessed Exhibit 8.

Abraham admitted that he used the desktop computer to view pornography and that it was

possible that he had viewed Exhibits 7 and 8. He claimed, however, that he did not remember

whether he had viewed the images because they were not memorable. Viewing the two images

themselves, the jury could have chosen to believe that Abraham’s assertion that he would not

have remembered seeing two disturbing images of child pornography was not believable. In any

event, we cannot conclude that this is the exceptional case where the jury lost its way.

Abraham’s convictions for the illegal use of a minor in a nudity-oriented material or performance

and pandering sexually oriented matter involving a minor are not against the manifest weight of

the evidence. Consequently, his third assignment of error is overruled.

Assignment of Error Number Two

THE TRIAL COURT COMMITTED PREJUDICIAL ERROR BY ALLOWING OVER DEFENDANT-APPELLANT’S REPEATED OBJECTION, THE STATE TO INTRODUCE TESTIMONY FROM A STATE’S WITNESS, CATHY LEIGHTON, AS TO THE NUMBER OF CHILDREN WHO HAVE WATCHED A VIDEO ON CHILD SEXUAL ABUSE WHO HAD SUBSEQUENTLY REPORTED ANY SUCH ABUSE.

{¶34} In his second assignment of error, Abraham argues that the trial court abused its

discretion by admitting the testimony of Cathy Resick Leighton because it was irrelevant and

impermissibly prejudicial. We disagree.

{¶35} A trial court has broad discretion in admitting evidence, and this Court will not

overturn its decision on appeal absent an abuse of discretion that materially prejudices a

defendant. State v. Wade, 9th Dist. No. 02CA0076,

, ¶ 8, quoting State v. Long,

(1978). Accord State v. Allen,

(1995). An abuse of 17

discretion implies that the trial court’s attitude was unreasonable, arbitrary, or unconscionable.

Blakemore v. Blakemore,

(1983).

{¶36} Cathy Resick Leighton testified that she is an elementary school counselor for the

Hudson City School District. Part of Leighton’s job each year is to present a grade-level

appropriate sexual abuse program at the school. Leighton chose to show a video to I.D.’s class

as part of her program. Leighton described the video as a story about a girl who decides to tell

her mother that her uncle has been touching her after a series of events. Leighton testified that,

after the video, she then discusses the story with the kids to talk about whether the girl in the

video had been sexually abused and whether she did the right thing by telling her mother.

Leighton testified that since she had developed the particular sexual abuse program she presented

to I.D.’s class she had presented it to approximately 960 students. She then stated that only one

child other than I.D. had ever reported abuse to her after viewing the material. Abraham

objected to Leighton’s last response on the basis of relevance. The trial court overruled his

objection, noting that the testimony was “marginally relevant.”

{¶37} Abraham argues that the trial court abused its discretion by admitting Leighton’s

testimony that only I.D. and one other student out of approximately 960 students had reported

sexual abuse after watching her program. He argues that the testimony was irrelevant and overly

prejudicial. Yet, the record reflects that Abraham only objected to Leighton’s testimony on the

basis of relevance. He did not object on the basis that the testimony was prejudicial. See Evid.R.

403(A) (“Although relevant, evidence is not admissible if its probative value is substantially

outweighed by the danger of unfair prejudice, of confusion of the issues, or of misleading the

jury.”). “A defendant forfeits appellate review of an alleged error at trial if [he] fails to

contemporaneously object to that error at trial.” State v. McCallum, 9th Dist. No. 08CA0037-M, 18

, citing State v. Payne,

,

, ¶ 23;

Crim.R. 52(B). Moreover, while a litigant who forfeits an objection below may argue plain error

on appeal, Abraham has not done so. “Because [Abraham] forfeited [his] Evid.R. 403 argument

by failing to object on that basis at trial and does not argue plain error on appeal, we will not

address [his] Evid.R. 403 argument.” McCallum at ¶ 19. “Instead, we confine our analysis to

[his] relevancy argument.” State v. Maple, 9th Dist. No. 25313,

, ¶ 12.

{¶38} “‘Relevant evidence’ means evidence having any tendency to make the existence

of any fact that is of consequence to the determination of the action more probable or less

probable than it would be without the evidence.” (Emphasis added.) Evid.R. 401. Part of the

defense’s theory in this case was that I.D. fabricated the allegations of abuse against Abraham

either because she blamed him for her father’s absence or to gain some degree of attention for

herself given the great deal of attention devoted to her sister’s disease. Leighton testified that it

was exceedingly uncommon for the children who participated in her program to report abuse

after the fact. Her testimony, therefore, detracted from any suggestion that I.D. was inspired to

fabricate the allegations against her grandfather as a result of the sexual abuse program and

bolstered I.D.’s credibility.

{¶39} The burden imposed by Evid.R. 401 is not an onerous one. Evidence will be

admissible under the rule so long as it has “any tendency” to make a fact of consequence more or

less probable. “[I.D.’s] credibility was of consequence to the charge.” State v. Moore,

(1988). Because the evidence had some tendency to make I.D. appear more

credible, we cannot conclude that the trial court abused its discretion by allowing it. See

Abraham’s second assignment of error is overruled. 19

Assignment of Error Number One

THE TRIAL COURT COMMITTED PREJUDICIAL ERROR BY DENYING DEFENDANT-APPELLANT’S MOTION FOR MISTRIAL AND SUBSEQUENT MOTION FOR NEW TRIAL RELATING TO THIS ISSUE WHICH WERE MADE FOLLOWING THE REMARKS, DURING REDIRECT EXAMINATION, OF A STATE’S WITNESS, DETECTIVE LINDA RINEAR, TO THE EFFECT THAT DEFENDANT-APPELLANT MIGHT WISH TO SPEAK WITH AN ATTORNEY PRIOR TO SIGNING A CONSENT TO SEARCH HIS PERSONAL COMPUTER, IN VIOLATION OF DEFENDANT’S RIGHTS UNDER THE FIFTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION.

{¶40} In his first assignment of error, Abraham argues that the trial court erred by

denying his motion for a mistrial after the State relied upon his pre-arrest silence as evidence of

his guilt in its case-in-chief. We disagree.

{¶41} “Mistrials need be declared only when the ends of justice so require and a fair

trial is no longer possible.” State v. Franklin,

(1991). “The essential

inquiry on a motion for mistrial is whether the substantial rights of the accused are adversely

affected. Great deference is afforded to a trial court’s decision regarding a motion for mistrial.

Accordingly, this Court reviews the denial of a motion for mistrial for an abuse of discretion.”

(Internal citations, alterations, and quotations omitted.) State v. Howes, 9th Dist. No. 24665,

, ¶ 11. An abuse of discretion means that the trial court was unreasonable,

arbitrary, or unconscionable in its ruling. Blakemore,

.

{¶42} “A suspect’s right to an attorney during questioning * * * is derivative of his right

to remain silent * * *.” State v. Leach,

,

, ¶ 13, quoting

Wainwright v. Greenfield,

, (1986) (Rehnquist, J., concurring). The State

may not use a defendant’s silence in its case-in-chief to plant in the minds of the jury the idea

“that innocent people speak to police to clear up misunderstandings, while guilty people consult

with their attorneys.” Leach at ¶ 32. “[T]he [S]tate’s substantive use of the defendant’s pre- 20

arrest, pre-Miranda silence substantially subverts the policies behind the Fifth Amendment

privilege against self-incrimination and is not a legitimate governmental practice.” Id. at ¶ 37. If

an appellate court determines that the State improperly used a defendant’s silence as substantive

evidence of guilt in its case-in-chief, the court then must examine whether the State’s error

constituted harmless error beyond a reasonable doubt. State v. Powell,

,

.

{¶43} There was only one instance at trial where Abraham’s pre-arrest, pre-Miranda

silence was referenced. That reference occurred during the State’s redirect examination of

Detective Linda Rinear. On direct examination, Detective Rinear explained that she investigated

Abraham after Children’s Services contacted her and eventually went to Abraham’s home to

collect his computer. Detective Rinear indicated that Abraham signed a consent form, allowing

the police to search the computer. On cross-examination, defense counsel repeatedly stressed

Abraham’s cooperation during Detective Rinear’s investigation. Specifically, defense counsel

asked whether Abraham had returned Detective Rinear’s phone call after she had left him a

voicemail, “willingly” came to the sheriff’s office to meet with her, “voluntarily” spoke with her,

and “voluntarily” signed the consent form to allow her to examine his computer. Detective

Rinear answered each question in the affirmative. On redirect examination, the following

exchange took place:

[PROSECUTOR]: And the consent to the computer, did he give that the first time you requested that or did you talk about that issue more than just one-time question? (Sic.)

[DETECTIVE RINEAR]: [Another detective] asked. Mr. Abraham stated that he didn’t know if he needed to talk to an attorney or he may want to talk to an attorney. [The other detective] asked him, I believe he –

[PROSECUTOR]: I don’t want to get into all the details.

[DETECTIVE RINEAR]: I’m sorry. 21

[PROSECUTOR]: I guess eventually then he consented without * * * further consultation. Is that accurate?

[DETECTIVE RINEAR]: Correct.

The State never again referenced Abraham’s statement that he might want to talk to an attorney.

{¶44} Abraham did not object to the foregoing testimony, move to strike it, or ask the

court for a curative instruction. Instead, Abraham moved for a mistrial on the basis that

Detective Rinear’s response was fatally prejudicial to his defense. Abraham maintains on appeal

that, because the State did not introduce overwhelming evidence of his guilt, he was unduly

prejudiced by the reference to his pre-arrest, pre-Miranda silence in the State’s case-in-chief.

See Leach at ¶ 38 (“Because the evidence of guilt was not overwhelming in this case, the

admission of defendant’s pre-arrest, pre-Miranda silence was clearly prejudicial.”).

{¶45} This case is distinct from Leach in that the State never affirmatively sought to use

Abraham’s silence as evidence. Compare id. at ¶ 4-7 (State remarked on defendant’s silence

during opening statement, repeatedly asked about his silence on direct examination, and

introduced the Miranda rights form he later signed into evidence). As appellate counsel

conceded at oral argument, there is no evidence that the State sought to elicit the response that

Detective Rinear gave. Compare State v. Riffle, 9th Dist. No. 07CA0114-M,

(State improperly used pre-arrest silence as substantive evidence of guilt multiple times in its

case-in-chief and in closing argument). Indeed, the prosecutor interrupted Detective Rinear

when she began to discuss Abraham’s reference to possibly needing or wanting an attorney. The

reference was “brief and isolated.” Powell,

,

.

Moreover, it was vague. The thrust of Leach and its progeny is that the State may not use a

defendant’s unwillingness to talk to the police to infer his guilt. See id. at ¶ 155-156. Detective

Rinear’s testimony does not support the conclusion that Abraham even invoked his right to 22

remain silent or was unwilling to talk to the police. Abraham was already at the sheriff’s office

when the police asked him to consent to a search of his computer and he said he might want to

speak to an attorney. One cannot discern from the record how much time elapsed between

Abraham’s statement and his decision to sign the consent form. Because the prosecutor

interrupted Detective Rinear’s response, her response lacks context. It is unclear whether

Abraham actually was silent for any amount of time, or if he simply pondered whether he might

want an attorney before he then read the consent form and signed it without further discussion.

The only conclusion to be drawn is that, at some point before Abraham left the sheriff’s office,

but perhaps not immediately, he signed the consent to search form. The instant case is

distinguishable from one in which the State uses a defendant’s silence against him and thereby

“substantially subverts the policies behind the Fifth Amendment privilege against self-

incrimination * * *.” Leach at ¶ 37.

{¶46} Even assuming that the State violated the principles set forth in Leach, we do not

agree with Abraham’s assertion that the error was inherently prejudicial. As set forth above, a

violation of a defendant’s right against self-incrimination is subject to harmless-error review.

, citing State v. Thompson,

(1987). Abraham avers that he

was prejudiced by the State’s error because the evidence of guilt in this case was not

overwhelming. He notes that there was no physical evidence and the State’s case hinged upon

the credibility of the victim. Yet, the evidence the State set forth on the rape and gross sexual

imposition charges was distinct from the evidence the State set forth on the charges for the illegal

use of a minor in a nudity-oriented material or performance and pandering sexually oriented

matter involving a minor. While it is true that the State’s case on the two former charges hinged

upon credibility, the State’s case on the two latter charges did not. In support of the latter two 23

charges, the State introduced two pornographic images taken from Abraham’s computer, and

Abraham himself testified that it was entirely possible that he had viewed those two images at

some point. The primary issue for debate was whether the people depicted in the images were,

in fact, children, and the State’s expert testified that they were. To the extent that Abraham

invoked his right to remain silent or expressed his unwillingness to talk to the police, he did so at

the time that the police asked for consent to search his computer. The only question, therefore, is

whether the State presented overwhelming evidence of Abraham’s guilt as to the charges arising

from the search of his computer.

{¶47} Based on our review of the record, we conclude that the evidence the State

introduced on the two charges outweighed any prejudicial effect that resulted from the allegedly

improper reference to Abraham’s silence. Abraham admitted to viewing pornography on his

computer, the State uncovered two specific pornographic images on Abraham’s computer,

Abraham admitted that he might have viewed the two images at some point in time, and the State

presented expert testimony that the images depicted children. There was overwhelming evidence

to establish Abraham’s guilt with regard to these charges. See

. Moreover, as

previously discussed, the allegedly improper reference to Abraham’s silence was “brief and

isolated.”

Abraham has not shown that he was prejudiced as a result of Detective Rinear’s

testimony. Thus, the trial court did not abuse its discretion by refusing to declare a mistrial.

Abraham’s first assignment of error is overruled.

III

{¶48} Abraham’s assignments of error are overruled. The judgment of the Summit

County Court of Common Pleas is affirmed.

Judgment affirmed. 24

There were reasonable grounds for this appeal.

We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy

of this journal entry shall constitute the mandate, pursuant to App.R. 27.

Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.

Costs taxed to Appellant.

BETH WHITMORE FOR THE COURT

BELFANCE, J. CONCURRING.

{¶49} I concur. I write separately to briefly discuss Mr. Abraham’s fifth assignment of

error. As noted by both the main and separate opinions, because Mr. Abraham failed to renew

his Crim.R. 14 motion to sever at the end of the State’s case or the conclusion of all of the

evidence, he has forfeited the issue on appeal. See, e.g., State v. Hatfield, 9th Dist. No. 23716,

. Thus, Mr. Abraham is limited to asserting plain error on appeal. See 25

State v. Miller, 9th Dist. Nos. 10CA009922, 10CA009915,

; Crim.R.

52(B). To establish plain error, “[f]irst, there must be an error, i.e., a deviation from a legal rule.

Second, the error must be plain. To be plain within the meaning of Crim.R. 52(B), an error must

be an obvious defect in the trial proceedings. Third, the error must have affected substantial

rights.” (Internal quotations, alterations, and citations omitted.) State v. Hardges, 9th Dist. No.

24175,

, ¶ 9.

To prevail on his claim that the trial court erred in denying his motion to sever, the defendant has the burden of demonstrating three facts. He must affirmatively demonstrate (1) that his rights were prejudiced, (2) that at the time of the motion to sever he provided the trial court with sufficient information so that it could weigh the considerations favoring joinder against the defendant’s right to a fair trial, and (3) that given the information provided to the court, it abused its discretion in refusing to separate the charges for trial.

(Emphasis added.) State v. Schaim,

(1992). Furthermore, in analyzing the

prejudice prong under Schaim, “a court must determine (1) whether evidence of the other crimes

would be admissible even if the counts were severed, and (2) if not, whether the evidence of each

crime is simple and distinct.”

{¶50} The record contains Mr. Abraham’s motion to sever that was considered and

denied by the trial court. The motion is less than two pages in length and does not provide any

argument explaining how the failure to sever the counts would prejudice him. No hearing was

held on Mr. Abraham’s motion. And while it appears that it is possible additional discussions

concerning severance occurred off the record, there is no further information or more detailed

argument about the merits of Mr. Abraham’s motion contained in the trial court record. Thus,

given the considerable discretion of the trial court concerning severance and the absence of any

detailed information or legal argument provided to the trial court in support of his motion, Mr. 26

Abraham faced a fairly formidable task in order to demonstrate reversible error in this matter,

much less plain error. I cannot conclude that he succeeded in demonstrating plain error.

{¶51} On appeal, Mr. Abraham does not explain how his rights were prejudiced as

defined in Schaim, nor does he analyze the remaining factors outlined in Schaim in assessing

whether the trial court committed a plain error. For example, he does not explain how the brief

motion before the trial court provided it with “sufficient information so that it could weigh the

considerations favoring joinder against the defendant’s right to a fair trial[.]” Schaim,

. Thus, based upon the record before this Court, I cannot conclude that the trial court

committed plain error in denying Mr. Abraham’s motion to sever.

{¶52} In light of the foregoing, I concur that Mr. Abraham’s fifth assignment of error is

properly overruled.

DICKINSON, J. DISSENTING.

SEPARATE TRIALS

{¶53} Nadeem Abraham’s fifth assignment of error is that the trial court incorrectly

denied his motion to sever the gross-sexual-imposition and rape counts from the pandering and

illegal-use-of-a-minor charges. Before trial, Mr. Abraham moved to sever the counts,

“[p]ursuant to Criminal Rule 14 . . . for trial purposes” because “the alleged child pornography

has nothing to do with the specific allegations of Rape and Gross Sexual Imposition herein.”

The trial court denied his motion. Mr. Abraham renewed his motion at the beginning of the trial,

but not at the close of the State’s case.

{¶54} The majority has correctly concluded that, because Mr. Abraham did not renew

his motion to sever at the end of the State’s case, he forfeited his ability to raise this issue on 27

appeal. State v. Owens,

(9th Dist. 1975). In his reply brief, Mr.

Abraham has raised two alternative arguments. His first argument is that, even though he cited

Criminal Rule 14 in his motion, his motion was, in substance, a motion under Criminal Rule 8.

His second argument is that the trial court’s failure to sever the counts was plain error.

{¶55} The majority has not addressed whether Mr. Abraham’s motion to sever was

actually a Criminal Rule 8 motion rather than a Criminal Rule 14 motion. Under Criminal Rule

8(A), “[t]wo or more offenses may be charged in the same indictment, information or complaint

in a separate count for each offense if the offenses charged, whether felonies or misdemeanors or

both, are of the same or similar character, or are based on the same act or transaction, or are

based on two or more acts or transactions connected together or constituting parts of a common

scheme or plan, or are part of a course of criminal conduct.” Under Criminal Rule 14, “[i]f it

appears that a defendant or the state is prejudiced by a joinder of offenses or of defendants in an

indictment, information, or complaint, or by such joinder for trial together of indictments,

informations or complaints, the court shall order an election or separate trial of counts, grant a

severance of defendants, or provide such other relief as justice requires.”

{¶56} The difference between a motion under Criminal Rule 8 and a motion under

Criminal Rule 14 is that “Rule 8 is concerned with the propriety of joining offenses in the

indictment” while Rule 14 is concerned with the propriety of trying both cases at the same time.

United States v. Terry,

(9th Cir. 1990); Crim. R. 14. In his motion to sever,

Mr. Abraham did not argue that the State could not join the charges in the same indictment, he

only argued that “he would be prejudice[d] by a joinder . . . for trial purposes.” Accordingly, he

has not established that the trial court should have treated his motion as a motion under Criminal

Rule 8. 28

{¶57} Regarding whether the trial court’s failure to sever the counts was plain error, the

majority, in paragraph 11, has suggested that Mr. Abraham made “no attempt to explain why

evidence that his computer contained child pornography would be inadmissible in his trial for

sexually abusing a child victim.” Two sentences later, however, it acknowledges that “[h]e . . .

argues that the court erred . . . because the admission of pornographic images [in] a sexual abuse

trial has a prejudicial effect.” The majority’s second statement is the factually correct one

because Mr. Abraham specifically argued in his brief that joinder of the counts was prejudicial

because “[t]he obvious inference would be that if the jury heard the computer crimes evidence, . .

. they would be more likely to believe that if [he] looked at child pornography . . . , he would

then be more likely to commit sexual offenses against [his 8-year-old granddaughter].”

{¶58} As the majority has noted, “[if] a defendant claims that he was prejudiced by the

joinder of multiple offenses, a court must determine (1) whether evidence of the other crimes

would be admissible even if the counts were severed, and (2) if not, whether the evidence of each

crime is simple and distinct.” State v. Schaim,

(1992). I agree that the

evidence of each crime in this case was simple and distinct. I do not agree, however, that the fact

that Mr. Abraham had pictures of naked children on his computer would have been admissible at

a trial on only the rape and gross sexual imposition charges and vice versa.

{¶59} Subject to certain exceptions, Rule 404(B) of the Ohio Rules of Evidence

provides that “[e]vidence of other crimes, wrongs, or acts is not admissible to prove the character

of a person in order to show action in conformity therewith.” In State v. Knisley, 2nd Dist. No.

22897,

, the Second District Court of Appeals recognized that evidence that the

defendant possessed child pornography would not be admissible at a trial on child rape charges.

Id. at ¶ 58-9; see also State v. Brown, 9th Dist. No. 25287,

, ¶ 52 (Belfance, P.J., 29

dissenting) (explaining that the mere fact that someone is “the type of person who would view a

pornographic website with teen-like images” does not mean that “he must be the type of person

who would sexually assault a teenage girl.”). There was no evidence that Mr. Knisley’s “use of

child pornography for sexual gratification made it more likely that he would engage in sexual

conduct with [his step-daughter] or that the ‘sexualized environment’ in the home was part of a

plan to rape [the step-daughter].” Knisley,

, ¶ 58. Not only was the pornography

evidence not relevant to the rape charges, it was of such an inflammatory nature that “[i]t would

be the type of evidence precluded by Evid.R. 404(B) because it would be stronger evidence of

[Mr. Knisley’s] character than of his motive or intent.” Id. at ¶ 59.

{¶60} As the majority has acknowledged, because there was no physical evidence of the

sexual abuse, the jury assessed Mr. Abraham’s guilt entirely on his and I.D.’s credibility. During

the trial, Mr. Abraham brought out inconsistencies between I.D.’s testimony and what she told

investigators after first reporting the abuse. The fact that Mr. Abraham had pictures of naked

children on his computer, however, significantly bolstered her testimony because it verified that

Mr. Abraham has a sexual attraction to young children. On the other hand, Mr. Abraham

strained his credibility by claiming that he only discovered that there is pornography on the

internet because he stumbled across it while looking for the website for BJ’s Warehouse Club.

That issue would not have come up if the counts had been tried separately.

{¶61} Upon review of all the evidence in this case, I believe it was plain error for the

trial court to try the child sexual abuse charges at the same time as the pornography charges.

Crim. R. 52(B) (providing that plain errors may be “noticed although they were not brought to

the attention of the court.”). I, therefore, would sustain Mr. Abraham’s fifth assignment of error

and remand for a separate trial on each set of offenses. 30

SUFFICIENT EVIDENCE

{¶62} Although I would remand this case for separate trials, for double jeopardy

purposes it is necessary to address whether the State presented sufficient evidence on each count.

Regarding the rape and gross sexual imposition charges, I agree with the majority that I.D.’s

testimony, viewed in a light most favorable to the prosecution, was enough to support his

convictions. Regarding the pandering and illegal-use-of-a-minor charges, however, the issue is

more complicated.

{¶63} The pandering charge was under Section 2907.32.2(A)(5) of the Ohio Revised

Code. Under that section, “[n]o person, with knowledge of the character of the material or

performance involved, shall . . . [k]nowingly solicit, receive, purchase, exchange, possess, or

control any material that shows a minor participating or engaging in sexual activity . . . .” R.C.

2907.32.2(A)(5). The evidence in the case was that the hard drive of the computer that Mr.

Abraham shared with his wife contained a jpeg image file that depicted a young girl performing

fellatio on a boy. Detective Daniel Sladek testified that his forensic examination of the hard

drive revealed that the file had been created and accessed on March 26, 2010, and modified on

April 3, 2010. While the indictment originally alleged that Mr. Abraham possessed the image on

or about May 19, 2010, the State amended the indictment at the beginning of trial to specify that

the “offense occurred on or about . . . the 26th day of March 2010, to on or about May 19th,

2010.” Viewing the evidence in a light most favorable to the prosecution, it was sufficient

evidence to support a conviction under Section 2907.32.2(A)(5).

{¶64} The illegal-use-of-a-minor count was charged under Section 2907.32.3(A)(3) of

the Ohio Revised Code. Under that section, “[n]o person 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[.]” 31

R.C. 2907.32.3(A)(3). The evidence of that charge was not as strong and the indictment was not

as broad as the pandering charge. The indictment alleged that, “on or about the 19th day of May,

2010,” Mr. Abraham “recklessly did possess or view any material . . . that shows a minor . . . in a

state of nudity, in violation of Section 2907.323(A)(3) . . . .” Detective Sladek testified that,

while his forensic examination of the hard drive on May 19, 2010, uncovered the picture of the

young girl in the bathtub, he said that the file was stored in “unallocated space” and that it did

not have a “create, access, or modify date or time.”

{¶65} According to Detective Sladek, “[u]nallocated space is just extra space that at one

time items could have been stored on and they’ve been deleted from the normal user’s ability to

draw on them again.” He explained that, “[o]nce you delete a file, what the user basically does is

click to delete the thing. The computer makes a notation at the beginning of the file that that

space is open for storage if needed and the user doesn’t want to do anything with that file again.”

He also explained that the reason a file in unallocated space would not have a “create, access, or

modify” date is because “[t]he computer decides that it’s no longer needed and does not keep

those for that file.” He further testified that, if there are no dates associated with a file “and it’s

in the unallocated space, it’s kind of hard to say how it got there . . . .” See United States v.

Flyer,

(9th Cir. 2011) (“Even if retrieved, all that can be known about a file in

unallocated space (in addition to its contents) is that it once existed on the computer’s hard drive.

All other attributes—including when the file was created, accessed, or deleted by the user—

cannot be recovered.”).

{¶66} In State v. Hurst,

,

, the Fifth District Court

of Appeals recognized “how computers and the internet can create a quagmire for the

prosecution of cases involving child pornography.” Id. ¶ 67. Quoting United States v. Polizzi, 32

(E.D.N.Y. 2008), vacated on other grounds by United States v. Polouizzi,

(2d Cir. 2009), the court explained that “[o]nline child pornography (or any other

electronic image) is typically received and viewed via email, downloading, or file sharing, or

viewed on an Internet website. Unwanted or unsolicited emails, popularly termed ‘spam,’ are

transmitted daily in the billions. Many carry commercial messages, are dubious or disguised in

nature and origin, and contain pornographic images, including child pornography, or links to

pornographic websites. In one study, ‘more than 40 percent of all pornographic spam either did

not alert recipients to images contained in the message or contained false subject lines, thus

making it more likely that recipients would open the messages without knowing that

pornographic images will appear.’ Opening files—whether received by email or available on a

website—in order to view the images may be automatic or manual. Files deliberately

downloaded from the Internet and intentionally saved by the user should be distinguished from

files automatically stored by the web browser in temporary cache files. ‘The term

“downloading” generally refers to the act of manually storing a copy of an image on the hard

drive for later retrieval.’ In contrast, ‘[t]he internet cache . . . is an area [on the hard drive] to

which the internet browser automatically stores data to speed up future visits to the same

websites.’ ‘While you surf the Internet, the computer’s web browsers keep copies of all the web

pages that you view, up to a certain limit, so that the same images can be redisplayed quickly

when you go back to them.’ It is possible for sophisticated computer users to access and even

‘delete’ the automatically stored internet cache files, but computer forensic experts are often able

to discover any files so deleted.” Id. ¶ 68-70 (citations omitted).

{¶67} In Hurst, the court noted that, “[i]f your computer is searched, even files that have

been dragged to the trash or cached by your browser software are counted as evidence. Some 33

offenders have been sent to jail for ‘possessing’ images that only a computer-forensics technician

can see.” State v. Hurst,

,

(citing Steve Silberman,

The United States of America v. Adam Vaughn, Wired News, Issue 10.10, Oct. 2002, at 3).

“Once a computer receives an illicit image by any method, whether spam email, intentional

downloading, loading of a CD–ROM, file sharing, etc., the computer user possesses ‘matter’

containing child pornography, even before viewing the electronic screen. The images are in the

computer and available for viewing. When he or she intentionally or unintentionally sees the

child pornography pictures, the user ‘knowingly possesses’ them—even if the images were

unsolicited, unwanted, or a complete surprise. The possession charged is purely passive.” Id. ¶

72.

{¶68} In Hurst, the Court concluded that the evidence supported the inference that the

images on Mr. Hurst’s computer did not appear by accident, noting that he had performed

internet searches for “amazing preteen; elite preteens; family incest tree; free young; young porn;

innocent youth; preteen angels; and shameless preteens, little angels, top ten Lolita nude and

pixyoung.com, teentray.com, tinyteenthongs.info.” State v. Hurst,

, 2009-

Ohio-983, at ¶ 86. In this case, the parties stipulated that “[a]n analysis of the hard drive . . .

reveal[ed] the regular presence of cookies containing file names associated with teen

pornography and similarly named sites over a two-year period.” There is an important

difference, however, between searching for “teen” websites looking for pictures of naked women

who are 18 or 19 and searching for “preteen” pornography, as in Hurst.

{¶69} All that the evidence in this case establishes is that, at some point, Mr. Abraham

attempted to delete the image of the girl in the bathtub from his hard drive. We do not know

how the image got onto his hard drive, when it occurred, whether Mr. Abraham ever viewed the 34

image, or when he attempted to delete it. I agree with the Ninth Circuit that “deletion of an

image alone does not support a conviction for . . . possession of child pornography on or about a

certain date.” United States v. Flyer,

(9th Cir. 2011). There was no evidence

that Mr. Abraham knew the image still existed in the unallocated space of his hard drive or that

he possessed the type of special forensic software that was necessary to view or recover the

image. See

. Accordingly, I believe that the State failed to present sufficient

evidence that, “on or about the 19th day of May, 2010,” Mr. Abraham “recklessly did possess or

view” the image. I, therefore, would remand this case for a new trial on the rape and gross

sexual imposition charges and a separate trial on the pandering charge and would direct that Mr.

Abraham cannot be retried on the illegal-use-of-a-minor charge.

APPEARANCES:

PETER T. CAHOON and AMANDA T. QUAN, Attorneys at Law, for Appellant.

SHERRI BEVAN WALSH, Prosecuting Attorney, and RICHARD S. KASAY, Assistant Prosecuting Attorney, for Appellee.