[Cite as State v. Conant,

.]

COURT OF APPEALS RICHLAND COUNTY, OHIO FIFTH APPELLATE DISTRICT

JUDGES: STATE OF OHIO : Hon. W. Scott Gwin, P.J. : Hon. John W. Wise, J. Plaintiff-Appellee : Hon. Patricia A. Delaney, J. : -vs- : : Case No. 13CA55 PAUL MICHAEL CONANT : : Defendant-Appellant : OPINION

CHARACTER OF PROCEEDING: Criminal appeal from the Richland County Court of Common Pleas, Case No. 2012- CR-851

JUDGMENT: Affirmed

DATE OF JUDGMENT ENTRY: April 23, 2014

APPEARANCES:

For Plaintiff-Appellee For Defendant-Appellant

JAMES J. MAYER, JR. RANDALL FRY PROSECUTING ATTORNEY 10 West Newlon Place JILL COCHRAN Mansfield, OH 44902 38 South Park Street Mansfield, OH 44902 [Cite as State v. Conant,

.]

Gwin, P.J.

{¶1} Appellant Paul Conant [“Conant”] appeals his convictions and sentences

for three counts of Pandering Sexually Oriented Matter Involving a Minor, in violation of

R.C. § 2907.322(A)(5), felonies of the fourth degree, and fifteen counts of Pandering

Obscenity Involving a Minor in violation of R.C. § 2907.321(A)(5), felonies of the fourth

degree after a jury trial in the Richland County Court of Common Pleas.

Facts and Procedural History

{¶2} On October 6, 2011, Captain Eric Bosko of the Richland County Sherriff’s

Department received a letter and report from the Internet Crimes Against Children

(“ICAC”) agency in Cuyahoga County indicating that they had information that child

pornography had been downloaded at an IP address located in Richland County. A

search warrant was obtained based on the information provided by ICAC for the

residence associated with the IP address in question, 1536 Pear Place, Mansfield,

Ohio. The search warrant was executed on October 7, 2011. A computer was removed

from the basement of the home. A subsequent search of the computer at the Bureau of

Criminal Investigation [“BCI”] located four videos of potential child pornography, 186

images of potential child pornography, and 494 images of young females modeling

clothing.

{¶3} As a result of the investigation started by ICAC, Conant was indicted on

December 7, 2012 on three counts of Pandering Sexually Oriented Matter Involving a

Minor, and fifteen counts of Pandering Obscenity Involving a Minor.

{¶4} During Conant’s jury trial, Captain Bosko testified that the owner of 1536

Pear Place, Mansfield, Ohio was David Conant, Jr., the eighty-seven year old father of Richland County, Case No. 13CA55 3

appellant. David Conant, III is the brother of appellant. Appellant’s father was present

when the warrant to search the home was executed.

{¶5} Captain Bosko further testified there were two computer areas in the

home, one in the kitchen and one in the basement. Appellant’s father told the officer’s

conducting the search that the computer in the kitchen belonged to him and he was the

sole user of that computer. The other computer set-up was down in the basement.

Captain Bosko testified that appellant’s father stated that the computer in the basement

belonged to appellant. Located near the basement computer were several pieces of

mail addressed to appellant, as well as other items that were identified by David

Conant, Jr. as belonging to appellant.

{¶6} The computers were then sent to BCI where they were examined by

Natasha Branham, a computer forensic specialist. Appellant's computer, identified as

Evidence Item 1 was found to have three hard drives located within the generic

computer tower. “Hard Disk One” had one terabyte [“1TB’] of memory and was running

Windows 7 Home Premium operating system. Programs called Frostwire and/or

Limewire were loaded onto this computer. These programs are used for peer-to-peer

sharing. Ms. Branham offered background information on peer-to peer-file sharing and

computer data storage. During her testimony, Ms. Branham explained that when

someone uses the Limewire or Frostwire program, they are presented with a search

box. The user then types a search term in the box and the program searches the files of

other users for these search term or terms. Any files with names containing those

search terms then appear in a list. The user may then select files from the list by either

selecting individual files or selecting a range of files. The user is then able to click the Richland County, Case No. 13CA55 4

download button to begin the download process. These types of programs allow a user

to store images in a file that can be accessed by the user from a remote location or by

other users of the same program.

{¶7} This particular drive was found to be password protected with multiple

possible combinations returned when attempts were made to crack the password. The

registered owner of the Windows 7 Home Premium software was “Mikie.” The operating

system was set to a default administrator. Located on this particular drive were four

videos of potential child pornography and eighty-two images of potential child

pornography. The file names of the four videos included words like “PTHC,” “pedo,”

“Lolita,” and “kiddie hunt.” Two of the videos were located within Frostwire/Limewire

folder. The photographs were not located within the Frostwire/Limewire folder. They

were located in “thumb [cache] DV file,” indicating that the images had been viewed

through Windows Explorer. The others were located in an “orphan folder.” All of the

counts in the complaint came from the images and videos located within Hard Drive

One.

{¶8} “Hard Drive Two” was a 250-gigabyte Seagate hard drive. The operating

system was Windows XP Professional. Paul M. Conant was the registered owner of the

Windows XP software. The administrator account on this hard drive had been changed

to a nickname of “Mikie” and full name of Mike Conant. “Hard Drive Three” was also a

250-gigabyte hard drive. It did not contain an operating system and was used simply for

storage. Located on Hard Drive Three were 104 images of potential child pornography

and 494 images of young females modeling clothing in various stages of undress but

not nude. Richland County, Case No. 13CA55 5

{¶9} Jason Howell, an investigator from ICAC testified regarding his

investigation that led to the issuance of the search warrant. Howell testified that one of

his reports indicated that appellant's computer was on and ten files of suspected child

pornography were located within the sharing file between February 17, 2011 and April

6, 2011. He could not tell when the items were downloaded.

{¶10} Melissa Donathan, an acquaintance of appellant, testified that she met

appellant in April of 2012. During this time, Ms. Donathan was living with her mother,

Connie Donathan. Connie Donathan was friends with appellant through work. Appellant

was also friends with Connie's landlord and did handyman work for him on occasion.

When Connie's garage wall collapsed, appellant came over to help fix it, which is how

Ms. Donathan became acquainted with the appellant.

{¶11} One day, while appellant was working on tearing down the garage for

Connie Donathan, a third party asked appellant if he had been informed whether the

police found anything as a result of the search warrant that had been executed the

previous October at appellant’s home. Appellant's response was that there was nothing

incriminating for the raid to even have been conducted. He said that a “black bitch on

the force had a hard on for him and that all the good stuff was on his laptop.” Appellant

expressed the belief that all of the stuff that was on his computer was legitimate

because if anything was on the computer, it had come from the internet and if it is on

the internet then it was legal.

{¶12} Appellant testified on his own behalf. Appellant presented his debit card

statements to verify that he was in the state of Texas from December to April of 2011.

Appellant admitted that he owned a laptop but stated it was stolen in December of 2012 Richland County, Case No. 13CA55 6

and that he never filed a police report. He admitted that he lived at 1536 Pear Place and

received his mail there. He further admitted that the computer in the basement belonged

to him and that his father did not use his computer or even goes down into the

basement. Appellant denied any password on his computer. He also indicated that the

home is usually locked and entrance can only be gained by key, garage door opener or

invitation. Appellant admitted to downloading Frostwire/Limewire so that he could

download programs. Appellant denied downloading the videos and pictures at issue.

{¶13} Appellant’s father, David Conant Jr. testified that he did winter in Texas

from October to April. When he is in Texas, his granddaughter, Sharon Little or his

friends, Robert and Pam Ulette pick up the mail and check the house and have keys for

that purpose. He testified that he has known these people for a long time and they are

all trustworthy. David did remember that appellant went down to Texas with him in 2011

but did not think that they went down or came back together. David testified that there

were people in and out of the house a lot.

{¶14} During his jury trial, Conant stipulated that the videos and images

constituted sexually oriented matter and/or obscenity and that they depicted minors. As

a result, the exhibits relating to the images and videos were never submitted to the jury.

(2T. at 185-188).

{¶15} The jury returned a verdict of guilty on all eighteen counts of the

indictment. Appellant was sentenced to twelve months on each count with counts one

through five consecutive to each other and counts six through eighteen concurrent to

each other and to the first five counts for a total prison sentence of five (5) years. Richland County, Case No. 13CA55 7

Appellant was sentenced to five (5) years of mandatory post release control and was

classified as a Tier II Sex Offender.

Assignment of Error

{¶16} Conant has raised one assignment of error,

{¶17} “I. THE VERDICT OF GUILTY RENDERED AGAINST THE APPELLANT

FOR COMMITTING THE CRIMES OF PANDERING SEXUALLY ORIENTED MATTER

INVOLVING A MINOR AND PANDERING OBSENITY[sic.] INVOLVING A MINOR WAS

AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.”

Analysis

{¶18} Our review of the constitutional sufficiency of evidence to support a

criminal conviction is governed by Jackson v. Virginia,

,

,

(1979), which requires a court of appeals to determine whether

“after viewing the evidence in the light most favorable to the prosecution, any rational

trier of fact could have found the essential elements of the crime beyond a reasonable

doubt.” Id.; see also McDaniel v. Brown,

,

,

(2010) (reaffirming this standard); State v. Fry,

,

, 2010–Ohio–1017, ¶146; State v. Clay,

,

,

2010–Ohio–2720, ¶68.

{¶19} Weight of the evidence addresses the evidence's effect of inducing belief.

State v. Thompkins,

,

(1997), superseded

by constitutional amendment on other grounds as stated by State v. Smith,

,

, 1997-Ohio–355. Weight of the evidence concerns “the

inclination of the greater amount of credible evidence, offered in a trial, to support one Richland County, Case No. 13CA55 8

side of the issue rather than the other. It indicates clearly to the jury that the party

having the burden of proof will be entitled to their verdict, if, on weighing the evidence in

their minds, they shall find the greater amount of credible evidence sustains the issue

which is to be established before them. Weight is not a question of mathematics, but

depends on its effect in inducing belief.” (Emphasis sic.) Id. at 387,

,

quoting Black's Law Dictionary (6th Ed. 1990) at 1594.

{¶20} When a court of appeals reverses a judgment of a trial court on the basis

that the verdict is against the weight of the evidence, the appellate court sits as a

“’thirteenth juror’” and disagrees with the fact finder’s resolution of the conflicting

testimony.

,

, quoting Tibbs v. Florida,

,

,

(1982). However, an appellate court may not merely

substitute its view for that of the jury, but must find that “‘the jury 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. Thompkins, supra,

, quoting State v.

Martin,

,

, 720–721(1st Dist. 1983).

Accordingly, reversal on manifest weight grounds is reserved for “‘the exceptional case

in which the evidence weighs heavily against the conviction.’”

“[I]n determining whether the judgment below is manifestly against

the weight of the evidence, every reasonable intendment and every

reasonable presumption must be made in favor of the judgment and the

finding of facts.

*** Richland County, Case No. 13CA55 9

“If the evidence is susceptible of more than one construction, the

reviewing court is bound to give it that interpretation which is consistent

with the verdict and judgment, most favorable to sustaining the verdict and

judgment.”

Seasons Coal Co., Inc. v. Cleveland,

,

(1984), fn.

3, quoting 5 Ohio Jurisprudence 3d, Appellate Review, Section 60, at 191–192 (1978).

{¶21} The parties agreed in the case at bar that the videos and the photographs

were sexually oriented material and/or obscene and that they depicted minors. (2T. at

185-188). Conant’s argument is that there was insufficient evidence to prove beyond a

reasonable doubt that he had "knowledge" and "possession" of the material found on

the computer located in the basement of the home.

{¶22} In the case at bar, Conant was charged with fifteen counts of Pandering

Obscenity Involving Minors. R.C. 2907.321(A)(5) provides,

No person, with knowledge of the character of the material or

performance involved, shall do any of the following:

***

(5) Buy, procure, possess, or control any obscene material, that

has a minor as one of its participants

{¶23} Conant was also charged with three counts of Pandering Sexually

Oriented Matter Involving a Minor. R.C. 2907.322(A)(5) provides,

No person, with knowledge of the character of the material or

performance involved, shall do any of the following:

*** Richland County, Case No. 13CA55 10

(5) Knowingly solicit, receive, purchase, exchange, possess, or

control any material that shows a minor participating or engaging in sexual

activity, masturbation, or bestiality.

{¶24} R.C. 2907.321(A) and R.C. 2907.322(A) include the element of

knowledge. R.C. 2907.321(A) requires the state to prove, as a prerequisite to proving a

defendant criminally liable for buying, procuring, possessing, or controlling “any

obscene material that has a minor as one of its participants or portrayed observers,”

that the defendant had “knowledge of the character of the material or performance

involved.” R.C. 2907.321(A)(5). R.C. 2907.322(A) requires the state to prove, as a

prerequisite to proving a defendant criminally liable for soliciting, receiving, purchasing,

exchanging, possessing or controlling “any material that shows a minor participating or

engaging in sexual activity, masturbation, or bestiality,” that the defendant had

“knowledge of the character of the material or performance involved.” See, State v.

Maxwell,

,

,

, ¶23 (construing R.C.

2907.321(A)(6)).

{¶25} Conant argues the state presented no evidence that he downloaded or

viewed the files at issue. He testified at trial that he had no knowledge of the pictures or

videos at issue. Conant asserts that none of the state’s computer experts could testify

that he had downloaded or even viewed the pictures and videos.

{¶26} R.C. 2901.22 defines “knowingly” as follows:

(B) A person acts knowingly, regardless of his purpose, when he is

aware that his conduct will probably cause a certain result or will probably Richland County, Case No. 13CA55 11

be of a certain nature. A person has knowledge of circum-stances when

he is aware that such circum-stances probably exist.

{¶27} Whether a person acts knowingly can only be determined, absent a

defendant's admission, from all the surrounding facts and circumstances, including the

doing of the act itself.” (Footnotes omitted). State v. Huff,

,

(1st Dist. 2001). Thus, “[t]he test for whether a defendant acted

knowingly is a subjective one, but it is decided on objective criteria.” State v. McDaniel,

2nd Dist. Montgomery No. 16221,

(May 1, 19998) (citing State v.

Elliott,

,

(10th Dist. 1995)).

{¶28} In the case at bar, Conant stipulated that the items found on his computer

were sexually oriented material and/or obscene and that they depicted minors. (2T. at

185-188). Thus, the character of the material or performance as obscene and as

depicting minors has been established. What Conant is really arguing, therefore, is the

state failed to prove that he “possessed” the material in the sense that he downloaded

the pictures and videos.

{¶29} R.C. 2925.01(K) defines possession as follows: “ ‘Possess' or ‘possession’

means having control over a thing or substance, but may not be inferred solely from

mere access to the thing or substance through ownership or occupation of the premises

upon which the thing or substance is found.” R.C. 2901.21 provides the requirements

for criminal liability and provides that possession is a “voluntary act if the possessor

knowingly procured or received the thing possessed, or was aware of the possessor's

control of the thing possessed for sufficient time to have ended possession.” R.C.

2901.21(D)(1). Richland County, Case No. 13CA55 12

{¶30} Possession may be actual or constructive. State v. Butler,

,

(1989); State v. Haynes,

,

(1971); State v. Hankerson,

,

(1982), syllabus. To

establish constructive possession, the evidence must prove that the defendant was able

to exercise dominion and control over the contraband. State v. Wolery,

,

(1976). Dominion and control may be proven by circumstantial

evidence alone. State v. Trembly,

,

(8th Dist. 2000).

Circumstantial evidence that the defendant was located in very close proximity to the

contraband may show constructive possession. State v.

State v. Barr,

,

(8th Dist. 1993); State v. Morales, 5th

Dist. Licking No. 2004 CA 68,

; State v. Moses, 5th Dist. Stark No.

2003CA00384,

. Ownership of the contraband need not be

established in order to find constructive possession. State v. Smith, 9th Dist. Summit

No. 20885,

, ¶13, citing State v. Mann, (1993)

,

(8th Dist. 1993). Furthermore, possession may be individual or

joint. Wolery,

,

. Multiple individuals may

constructively possess a particular item of contraband simultaneously. State v. Pitts, 4th

Dist. Scioto No. 99 CA 2675,

. The Supreme Court has held that

knowledge of illegal goods on one's property is sufficient to show constructive

possession. State v. Hankerson,

,

(1982),

certiorari denied,

,

,

(1982).

{¶31} If the state relies on circumstantial evidence to prove an essential element

of an offense, it is not necessary for “such evidence to be irreconcilable with any Richland County, Case No. 13CA55 13

reasonable theory of innocence in order to support a conviction.” State v. Jenks,

,

(1991), paragraph one of the syllabus,

superseded by State constitutional amendment on other grounds as stated in State v.

Smith,

,

(1997). “Circumstantial evidence and direct

evidence inherently possess the same probative value [.]” Jenks, 61 Ohio St.3d at

paragraph one of the syllabus. Furthermore, “[s]ince circumstantial evidence and direct

evidence are indistinguishable so far as the jury's fact-finding function is concerned, all

that is required of the jury is that i[t] weigh all of the evidence, direct and circumstantial,

against the standard of proof beyond a reasonable doubt.“ Jenks,

,

. While inferences cannot be based on inferences, a number of

conclusions can result from the same set of facts. State v. Lott,

,

(1990), citing Hurt v. Charles J. Rogers Transp. Co,

,

331,

(1955). Moreover, a series of facts and circumstances can be

employed by a jury as the basis for its ultimate conclusions in a case. Lott,

,

, citing Hurt, 164 Ohio St. at 331,

.

{¶32} In the case at bar, only two people live in the house on 1536 Pear Place,

David Conant Jr. and appellant. Appellant admitted that the computer in the basement

belonged to him and his father had not used that computer and rarely went into the

basement except to watch television if it was too hot upstairs. Items of mail and other

personal items of appellant were located near the computer when the search warrant

was executed. Appellant admitted that all of the software and programs found on the

computer were registered to him. Richland County, Case No. 13CA55 14

{¶33} Hard Disk One had Frostwire/Limewire installed for the purpose of file

sharing. Appellant admitted that he downloaded Frostwire/Limewire in order to

download programs. Two of the videos in question were located within the

Frostwire/Limewire folder. Melissa Donathan testified that appellant stated that he was

not worried about anything found on the computer because he had gotten it all from the

internet so it all had to be legal. He also stated that the "good stuff" was on his laptop,

which was appellant testified, stolen sometime in December of 2012. Although the

investigators testified that they could not tell from the data that was received from the

computer, who was downloading and viewing the files or when most of the files were

downloaded or viewed, the evidence is that it was found on a computer owned and

used by appellant, and the computer was password protected. At trial, appellant testified

that the computer was not password protected.

{¶34} Appellant argued that other people had access to the computer. The only

testimony to that was from David Conant Jr. who testified that his granddaughter and

his good friends looked after his home while he is wintering in Texas. He further testified

that there are always people in and out of the house. However, there was no testimony

that anyone else had access to the computer simply because he or she was inside of

the house. Again, the hard drive in question was password protected.

{¶35} Ultimately, “the reviewing court must determine whether the appellant or

the appellee provided the more believable evidence, but must not completely substitute

its judgment for that of the original trier of fact ‘unless it is patently apparent that the fact

finder lost its way.’” State v. Pallai, 7th Dist. Mahoning No. 07 MA 198,

, quoting State v. Woullard,

,

,

Richland County, Case No. 13CA55 15

(2nd Dist. 2004), ¶ 81. In other words, “[w]hen there exist two fairly reasonable views of

the evidence or two conflicting versions of events, neither of which is unbelievable, it is

not our province to choose which one we believe.” State v. Dyke, 7th Dist. Mahoning

No. 99 CA 149,

, at ¶ 13, citing State v. Gore,

,

(7th Dist. 1999).

{¶36} The weight to be given to the evidence and the credibility of the witnesses

are issues for the trier of fact. State v. DeHass,

,

(1967), paragraph one of the syllabus; State v. Hunter,

, 2011-

Ohio-6524,

, ¶118. Accord, Glasser v. United States,

,

,

(1942); Marshall v. Lonberger,

,

,

(1983).

{¶37} The jury as the trier of fact was free to accept or reject any and all of the

evidence offered by the parties and assess the witness’s credibility. "While the jury may

take note of the inconsistencies and resolve or discount them accordingly * * * such

inconsistencies do not render defendant's conviction against the manifest weight or

sufficiency of the evidence." State v. Craig, 10th Dist. Franklin No. 99AP-739,

(Mar 23, 2000) citing State v. Nivens, 10th Dist. Franklin No. 95APA09-1236,

(May 28, 1996). Indeed, the jury need not believe all of a witness'

testimony, but may accept only portions of it as true. State v. Raver, 10th Dist. Franklin

No. 02AP-604,

, ¶21, citing State v. Antill,

, 67,

(1964); State v. Burke, 10th Dist. Franklin No. 02AP-1238,

,

citing State v. Caldwell,

,

(4th Dist. 1992). Richland County, Case No. 13CA55 16

Although the evidence may have been circumstantial, we note that circumstantial

evidence has the same probative value as direct evidence. State v.

{¶38} We find that this is not an “‘exceptional case in which the evidence weighs

heavily against the conviction.’” Thompkins,

,

,

quoting Martin,

,

. The jury neither lost his way

nor created a miscarriage of justice in convicting Conant of the charges.

{¶39} Based upon the foregoing and the entire record in this matter, we find

Conant’s convictions were not against the sufficiency or the manifest weight of the

evidence. To the contrary, the jury appears to have fairly and impartially decided the

matters before them. The jury as a trier of fact can reach different conclusions

concerning the credibility of the testimony of the state’s witnesses and Conant. This

court will not disturb the jury's finding so long as competent evidence was present to

support it. State v. Walker,

,

(1978). The jury heard

the witnesses, evaluated the evidence, and was convinced of Conant’s guilt.

{¶40} Finally, upon careful consideration of the record in its entirety, we find that

there is substantial evidence presented which if believed, proves all the elements of the

crimes beyond a reasonable doubt. Richland County, Case No. 13CA55 17

{¶41} Conant’s sole assignment of error is overruled in its entirety, and the

judgment of the Court of Common Pleas, Richland County, Ohio is affirmed.

By Gwin, P.J.,

Wise, J., and

Delaney, J., concur