[Cite as State v. Starcher,

.]

COURT OF APPEALS STARK COUNTY, OHIO FIFTH APPELLATE DISTRICT

STATE OF OHIO : JUDGES: : : Hon. W. Scott Gwin, P.J. Plaintiff-Appellee : Hon. John W. Wise, J. : Hon. Patricia A. Delaney, J. -vs- : : Case No. 2015CA00058 : KENNETH REED STARCHER : : : Defendant-Appellant : OPINION

CHARACTER OF PROCEEDING: Appeal from the Stark County Court of Common Pleas, case no. 2014CR1064

JUDGMENT: AFFIRMED

DATE OF JUDGMENT ENTRY: December 14, 2015

APPEARANCES:

For Plaintiff-Appellee: For Defendant-Appellant:

JOHN D. FERRERO, JR. KENNETH J. LEWIS STARK CO. PROSECUTOR 1220 West 6th St. RENEE M. WATSON Ste. 502 110 Central Plaza South, Ste. 510 Cleveland, OH 44113 Canton, OH 44702-1413 Stark County, Case No. 2015CA00058 2

Delaney, J.

{¶1} Appellant Kenneth Reed Starcher appeals from the March 24, 2015

Judgment Entry of the Stark County Court of Common Pleas. Appellee is the state of

Ohio.

FACTS AND PROCEDURAL HISTORY

{¶2} The United States, Australia, and Russia are members of a Mutual Legal

Assistance Treaty whereby member nations share information about internet traffic on

websites including IMGSRC.RU, a Russian file-sharing site known to U.S. Homeland

Security as a repository for child pornography.

{¶3} On November 6, 2013, “[email protected],” an individual seeking to

trade images of child pornography via IMGSRC.RU, contacted an Australian undercover

agent. The Australian agent communicated with Reed8082 for two days and advised

U.S. Homeland Security the individual was believed to be American and actively sought

images of child pornography.

{¶4} Homeland Security agents obtained user information from Russian

website administrators on the account [email protected] indicating the user

established the account in July 2013 and visited the site 17 times between July and

November 2013. Agents linked the account to appellant via social media accounts and

appellant’s photo attached to the Gmail address matching his photo in a law

enforcement database. Appellant was found to be living at an address in Canton, Ohio

with his girlfriend.

{¶5} On November 21, 2013, agents went to appellant’s residence and asked

to speak with him. Appellant was not arrested or placed into custody and voluntarily Stark County, Case No. 2015CA00058 3

spoke with agents. He claimed he began searching the internet for child pornography in

September 2013, leading him to IMGSRC.RU where he established an account as

[email protected].

{¶6} Appellant admitted he made contact with a user named “Lodi” who

provided him with a password to a Photobucket account containing images of child

pornography. Appellant downloaded videos and photographs. Appellant admitted he

recently spoke to a user from Australia. He voluntarily turned over his cell phone and

laptop for investigation and signed a consent-to-search form. Agents did a preliminary

search at the residence and discovered images of “child erotica” and animated child

pornography on appellant’s laptop. The electronics were seized for further review.

{¶7} Appellant accompanied agents to the Canton office of the F.B.I. and

voluntarily agreed to speak to Special Agent Paul Pape. Appellant told Pape he

searched for and downloaded images of child pornography and gave agents permission

to assume his online identity. Agents confirmed appellant was the individual who

communicated with the Australian agent and appellant possessed an image sent to him

by the Australian agent. Appellant admitted he viewed the videos and images and said

he immediately deleted them.

{¶8} Forensic analysis of appellant’s cell phone yielded three videos of graphic

sexual abuse of children and 31 photo images of “pre-pubescent” children being

sexually abused. Images deleted by appellant were still retained on the hard drive of

the devices.

{¶9} Agents submitted the images to a law enforcement database tracking

victims and offenders of child pornography. All three videos and 12 of the photographic Stark County, Case No. 2015CA00058 4

images contained images of victims positively identified and known to law enforcement

as children who were “underage” at the time the images were captured. The remaining

victims were not identified. Appellant does not appear in the images.

{¶10} Agents created a disk of the material that was entered into evidence as

State’s Exhibit 7.

{¶11} Appellant was charged by indictment with one count of pandering sexually

oriented matter involving a minor pursuant to R.C. 2907.322(A)(6), a felony of the

second degree; and 21 counts of pandering sexually oriented matter involving a minor

pursuant to R.C. 2907.322(A)(5), all felonies of the fourth degree. Appellant entered

pleas of not guilty and the case proceeded to pretrial litigation. Appellant filed a motion

to suppress and at one point entered pleas of guilty. The trial court set the matter for

sentencing pending a pre-sentence investigation (P.S.I.).

{¶12} Appellant then filed a motion to vacate his guilty pleas because he

“changed his mind” (Motion to Vacate Plea Pursuant to Criminal Rule 32.1, page 3).

Appellee responded with a motion in opposition and the trial court scheduled a hearing,

following which the trial court permitted appellant to withdraw his guilty pleas.

{¶13} The case proceeded to trial by jury before a visiting judge. Pursuant to

leave of court, appellee entered a nolle prosequi upon counts 20 and 21, pandering

sexually oriented matter involving a minor pursuant to R.C. 2907.322(A)(5), both

felonies of the fourth degree. Appellant was otherwise found guilty as charged and the

trial court deferred sentencing to March 18, 2014.

{¶14} Appellant filed a sentencing memorandum on March 18, 2014 and a

sentencing hearing was held. Appellant argued he took responsibility for his actions, Stark County, Case No. 2015CA00058 5

cooperated with law enforcement, had strong family support, passed a polygraph

purporting to establish he did not abuse his own children, was a former Marine, and had

a consistent work history. Appellee pointed out, however, that appellant was convicted

of sexual battery against an adult victim in 2003 and failure to register in 2009.

Although not chargeable offenses, appellant also possessed 80 images of “child erotica”

and animated child pornography on his laptop. Finally, the investigation revealed

appellant’s sexual urges toward children.

{¶15} The trial court noted it reviewed and applied the applicable sentencing

statutes along with appellant’s sentencing memorandum. The trial court observed that

the former judge over the proceedings found 9 years to be a suitable sentence when

appellant had initially entered pleas of guilty. Having listened to the evidence at trial,

though, including viewing the images and videos, the trial court stated the evidence

could not have been more repugnant; the fact that agents could identify some of the

victims in the videos and images demonstrated the pernicious viability of child

pornography. Even once victims are identified and offenders are prosecuted, the

images take on a life of their own as they are shared over and over again, re-victimizing

children and perpetuating sexual enslavement. The trial court found it particularly

egregious that a former Marine made a conscious decision to victimize children. Finally,

the court noted appellant’s history of prior felony convictions.

{¶16} The trial court sentenced appellant to an aggregate prison term of 12

years and classified him as a Tier II offender.

{¶17} Appellant now appeals from the judgment entry of conviction and

sentence. Stark County, Case No. 2015CA00058 6

{¶18} Appellant raises one assignment of error:

ASSIGNMENT OF ERROR

{¶19} “THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION IN

SENTENCING APPELLANT TOO HARSHLY.”

ANALYSIS

{¶20} In his sole assignment of error, appellant argues the sentence is unduly

harsh, disproportionate, and constitutes an abuse of discretion. We disagree.

Our Standard of Review for Felony Sentences

{¶21} In State v. Kalish,

,

, 2008–Ohio–4912,

the Ohio Supreme Court established a two-step procedure for reviewing a felony

sentence. The first step is to “examine the sentencing court's compliance with all

applicable rules and statutes in imposing the sentence to determine whether the

sentence is clearly and convincingly contrary to law.”

. If the first step is

satisfied, the second step requires the trial court's decision be reviewed under an

abuse-of-discretion standard.

{¶22} This district still relies upon Kalish's two-step standard of review because

it provides a meaningful framework for evaluating felony sentences, permitting us to

honor the sentencing discretion of trial courts while ensuring those sentences comply

with applicable statutes. State v. Bailey, 5th Dist. Ashland No. 14-COA-008, 2014-Ohio-

5129, ¶ 19. Other appellate districts which now reject the Kalish two-step standard of Stark County, Case No. 2015CA00058 7

review find only R.C. 2953.08(G)(2) is applicable and the abuse-of-discretion standard

of review is no longer allowed.1

{¶23} R.C. 2953.08(G)(2) provides two grounds for an appellate court to

overturn the imposition of consecutive sentences: (1) the sentence is “otherwise

contrary to law”; or (2) the appellate court, upon its review, clearly and convincingly

finds that “the record does not support the sentencing court's findings” under R.C.

2929.14(C)(4). We have recognized that “[w]here the record lacks sufficient data to

justify the sentence, the court may well abuse its discretion by imposing that sentence

without a suitable explanation.” State v. Firouzmandi, 5th Dist. Licking No.2006–CA–41,

2006–Ohio–5823, ¶ 52.

Appellant’s Sentence is Neither Contrary to Law nor an Abuse of Discretion

{¶24} A trial court has discretion to impose any sentence within the statutory

range. State v. Mathis,

, 2006–Ohio–855,

. The

sentence imposed here is within the range permitted by law for felonies of the second

and fourth degrees.

{¶25} Appellant’s sentence upon Count I, a felony of the second degree, is the

maximum sentence of 8 years. Subsequent to the Ohio Supreme Court's Foster

decision, “[t]he decision to impose the maximum sentence is simply part of the trial

court's overall discretion in issuing a felony sentence and is no longer tied to mandatory

fact-finding provisions.” State v. Parsons, 7th Dist. Belmont No. 12 BE 11, 2013–Ohio–

1281, ¶ 14.

1 See, e.g., State v. Zanders, 8th Dist. Cuyahoga No. 99146,

[“* * * our review of a defendant's sentence is not an abuse of discretion.”] Stark County, Case No. 2015CA00058 8

{¶26} On the record at the sentencing hearing and in the journal entry, the trial

court noted it considered the purposes and principles of sentencing contained in R.C.

2929.11 and considered the seriousness factors of R.C. 2929.12. The trial court cited

the relevant factors at the sentencing hearing as described in the statement of facts,

supra. The prison term of 8 years is within the statutory range for the offense of

pandering sexually oriented matter involving a minor pursuant to R.C. 2907.322(A)(6), a

felony of the second degree [Count I]; the prison terms of 18 months each upon Counts

II and III, and 12 months each upon Counts IV through XIX and Count XXII are within

the statutory range for pandering sexually oriented matter involving a minor pursuant to

R.C. 2907.322(A)(5), felonies of the fourth degree. The sentences are therefore in

accordance with law. R.C. 2929.13(B) and (D).

Appellant’s Sentence is supported by the Record

{¶27} We further find the sentence of the trial court is supported by the record

and does not constitute an abuse of discretion.

{¶28} Appellant takes issue with the consecutive sentences imposed in the

instant case. The presumption in Ohio is that sentences are to run concurrent, unless

the trial court makes the required findings for imposing consecutive sentence set forth in

R.C. 2929.14(C)(4). See, R.C. 2929.41(A).

{¶29} O.R.C. 2929.14(C) states:

(4) If multiple prison terms are imposed on an offender for

convictions of multiple offenses, the court may require the offender

to serve the prison terms consecutively if the court finds that the

consecutive service is necessary to protect the public from future Stark County, Case No. 2015CA00058 9

crime or to punish the offender and that consecutive sentences are

not disproportionate to the seriousness of the offender's conduct

and to the danger the offender poses to the public, and if the court

also finds any of the following:

(a) The offender committed the multiple offenses while the offender

was awaiting trial or sentencing, was under a sanction imposed

pursuant to Section 2929.16, 2929.17 or 2929.18 of the Revised

Code, or was under post-release control for a prior offense.

(b) The harm caused by the multiple offenses was so great or

unusual that no single prison terms for any of the offenses

committed as part of a single course of conduct adequately reflects'

the seriousness of the offender's conduct.

(c) The offender's history of criminal conduct demonstrates that

consecutive sentences are necessary to protect the public from

future crime by the offender.

{¶30} 2011 Am.Sub.H.B. No. 86, which became effective on September 30,

2011, revived the language provided in former R.C. 2929.14(E) and moved it to R.C.

2929.14(C)(4). The revisions to the felony sentencing statutes now require a trial court

to make specific findings when imposing consecutive sentences.

{¶31} The Ohio Supreme Court recently addressed the requirements for

imposing consecutive sentences in a comprehensive fashion, finding a trial court must

make the findings mandated by R.C. 2929.14(C)(4) at the sentencing hearing and

incorporate its findings into its sentencing entry; the trial court has no obligation to state Stark County, Case No. 2015CA00058 10

reasons to support its findings. State v. Bonnell,

, 2014–Ohio–3177,

, syllabus. The Court further explained “a word-for-word recitation of the

language of the statute is not required, and as long as the reviewing court can discern

that the trial court engaged in the correct analysis and can determine that the record

contains evidence to support the findings, consecutive sentences should be upheld.” Id.

at ¶ 29.

{¶32} R.C. 2929.14(C)(4) requires the court to find that (1) consecutive

sentences are necessary to protect the public from future crime or to punish the

offender, (2) consecutive sentences are not disproportionate to the seriousness of the

offender's conduct and to the danger the offender poses to the public, and (3) at least

one of the three findings set forth in R.C. 2929.14(C)(4)(a)-(c) applies.

Appellant’s Argument is based upon Merger, not Findings

{¶33} Appellant does not argue the trial court failed to make the requisite

findings, however.2 Instead, he argues consecutive sentences are contrary to law

because the offenses arose from the same conduct pursuant to R.C. 2941.25, the

allied-offenses statute. We note appellant never made an allied-offenses argument at

trial and only summarily states here that the offenses should have merged for

sentencing. We have previously found an appellant's failure to raise a claim that

offenses are allied offenses of similar import in the trial court constitutes a waiver of the

2 As appellee points out, appellant argues the trial court wrongfully found “at least two of the multiple offenses were committed as one or more courses of conduct, and the harm caused by two or more of the offenses was so great or unusual that no single prison term for any of the offenses committed adequately reflects the seriousness of the offender’s conduct,” citing to page 22 of the sentencing transcript. (Brief, 7-8). Upon our review, these findings do not appear at page 22 or anywhere else in the sentencing transcript. Stark County, Case No. 2015CA00058 11

claimed error. State v. Haynes, 5th Dist. Richland No. 2009 CA 0031,

, ¶

12, citing State v. Comen,

,

(1990). In the instant

case, however, we find appellant’s allied-offenses argument fails substantively.

{¶34} The Ohio Supreme Court recently clarified the test courts should employ

when deciding whether two or more offenses are allied offenses that merge into a single

conviction under R.C. 2941.25 in State v. Ruff,

, 2015–Ohio–995,

, clarifying its decision in State v. Johnson,

, 2010–

Ohio–6314,

and describing that decision as “incomplete.” Id. at ¶ 16.

Johnson directed courts to focus on the defendant's conduct when evaluating whether

offenses are allied. The Ruff court maintained that when determining whether there are

allied offenses that merge into a single conviction, the court must first examine the

defendant's conduct.

. Multiple offenses do not merge if (1) the offenses are

dissimilar in import or significance, (2) the offenses were committed separately, or (3)

the offenses were committed with separate animus or motivation.

at syllabus. With

respect to the first factor, the court explained that two or more offenses are dissimilar

within the meaning of R.C. 2941.25(B) “when the defendant's conduct constitutes

offenses involving separate victims or if the harm that results from each offense is

separate and identifiable.”

at syllabus.

{¶35} We find the multiple offenses of pandering sexually oriented matter

involving a minor in the case do not merge. We thus join with multiple other Ohio

appellate court districts which have found that “multiple convictions are allowed for each

individual image because a separate animus exists every time a separate image or file

is downloaded and saved.” State v. Duhamel, 8th Dist. Cuyahoga No. 102346, 2015- Stark County, Case No. 2015CA00058 12

Ohio-3145, ¶ 62, citing State v. Mannarino, 8th Dist. Cuyahoga No. 98727, 2013–Ohio–

1795, ¶ 53; see also, State v. Eal, 10th Dist. Franklin No. 11AP–460, 2012–Ohio–1373,

¶ 93. The selection of each individual video or image is a separate decision.

{¶36} As observed in Duhamel, the children depicted in the images or videos

are the victims of the pandering offenses.

, citing State v.

Meadows,

,

(1986). Further,

[e]ach video and image presents a different child or group of

children. Individuals who view or circulate child pornography harm

the child in several ways (1) by perpetuating the abuse initiated by

the creator of the material, (2) by invading the child's privacy, and

(3) by providing an economic motive for producers of child

pornography. U.S. v. Norris,

(5th Cir. 1998). As

previously stated, the dissemination of child pornography

exacerbates and continues the exploitation and victimization of the

individual child. Ferber,

,

,

; See also U.S. v. Sherman,

(7th

Cir. 2001) (even a “passive consumer who merely receives or

possesses the images directly contributes to this continuing

victimization.”).

State v. Duhamel, 8th Dist. Cuyahoga No. 102346, 2015-Ohio-

3145, ¶ 61.

{¶37} Appellant’s convictions are not allied offenses of similar import because he

downloaded each file of child pornography with a separate animus, and each Stark County, Case No. 2015CA00058 13

downloaded file was a crime against a separate victim or victims. Id.; see also, State v.

Sanchez, 11th Dist. No. 98-A-0006,

(Apr. 9, 1999), at 6; State v.

Yodice, 11th Dist. Lake No. 2001-L-155,

, ¶ 25; State v. Hendricks, 8th

Dist. Cuyahoga No. 92213, 2009–Ohio–5556, ¶ 35; State v. Stone, 1st Dist. Hamilton

No. C–040323, 2005–Ohio–5206.

Appellant’s Sentence is not Unduly Harsh or Disproportionate

{¶38} Finally, appellant summarily argues his sentence is disproportionate to

those of similarly-situated individuals. A felony sentence should be proportionate to the

severity of the offense committed so as not to “shock the sense of justice in the

community.” State v. Chafin,

,

; R.C. 2929.11(B). A

defendant alleging disproportionality in felony sentencing has the burden of producing

evidence to “indicate that his sentence is directly disproportionate to sentences given to

other offenders with similar records who have committed these offenses * * *.” State v.

Ewert, 5th Dist. Muskingum No. CT2012–0002, 2012–Ohio–2671, ¶ 33, citing State v.

Breeden, 8th Dist. No. 84663, 2005–Ohio–510, ¶ 81.

{¶39} Appellant failed to provide any evidence his sentence is constitutionally

disproportionate. Instead, in the trial court, he presented a list of cases involving sex

crimes against children with relatively light sentences. When sentencing an offender,

though, each case stands on its own unique facts. Thus, another court has concluded

that “[a] list of child pornography cases is of questionable value in determining whether

the sentences imposed are consistent for similar crimes committed by similar offenders

since it does not take into account all the unique factors that may distinguish one case Stark County, Case No. 2015CA00058 14

from another.” State v. Siber, 8th Dist. Cuyahoga No. 94882, 2011–Ohio–109, ¶ 15. In

this case, one such factor is appellant’s felony record.

{¶40} Appellant also argues the trial court did not place enough emphasis on

factors in mitigation, including his “genuine remorse and regret.” R.C. 2929.11 requires

trial courts to be guided by the overriding principles of felony sentencing. Those

purposes are “to protect the public from future crime by the offender and others and to

punish the offender using the minimum sanctions that the court determines accomplish

those purposes without imposing an unnecessary burden on state or local government

resources.” R.C. 2929.11(A). The court must “consider the need for incapacitating the

offender, deterring the offender and others from future crime, rehabilitating the offender,

and making restitution to the victim of the offense, the public, or both.”

R.C.

2929.11(B) further provides that “[a] sentence imposed for a felony shall be reasonably

calculated to achieve the two overriding purposes of felony sentencing * * *,

commensurate with and not demeaning to the seriousness of the offender's conduct

and its impact upon the victim, and consistent with sentences imposed for similar crimes

committed by similar offenders.”

{¶41} Despite appellant’s protestations of remorse, the trial court observed

appellant had prior felony convictions for sexual battery and failure to register. This

criminal history indicates appellant “failed to respond to prior sanctions for a similar

offense.” See R.C. 2929.14(D)(3) and State v. Baker, 7th Dist. Belmont No. 11-BE-40,

. The purposes of felony sentencing support the trial court’s

sentence in the instant case. Stark County, Case No. 2015CA00058 15

{¶42} The record supports the court's findings and sentence. In

, the court cited New York v. Ferber,

,

,

(1982), recognizing the government's interest in safeguarding

the physical and psychological well-being of children and in preventing their sexual

exploitation:

Every video or image of child pornography on the internet

constitutes a permanent record of that particular child's sexual

abuse. The harm caused by these videos is exacerbated by their

circulation.

The videos in [appellant’s] library show eight, nine,

and ten-year old girls being vaginally raped by adult men. Adult

men are seen video-recording and photographing young girls while

they are being molested, raped, and abused. These videos are far

worse than solitary photographs of naked children, which are

themselves harmful to the child victims. [Appellant] downloaded the

videos at different times as part of a course of conduct. Therefore,

the record supports the court's finding that consecutive sentences

are proportionate to the seriousness of [appellant’s] crimes, are

necessary to punish [appellant] for his multiple downloads of child

pornographic material, and to protect the public.

State v. Duhamel, 8th Dist. Cuyahoga No. 102346, 2015-Ohio-

3145, ¶ 55.

{¶43} The factors relevant in Duhamel unfortunately apply in the instant case.

The trial court noted factors it considered at sentencing and specifically stated that it Stark County, Case No. 2015CA00058 16

considered the purposes and principles of sentencing under R.C. 2929.11, as well as

the sentencing factors in R.C. 2929.12. The transcript of the sentencing hearing and

resulting judgment entry indicate the trial court engaged in the appropriate analysis and

made the required findings. Rather than establishing error, the record supports the trial

court's sentence of 12 years.

{¶44} Appellant's sole assignment of error is thus overruled.

CONCLUSION

{¶45} Appellant’s sole assignment of error is overruled and the judgment of the

Stark County Court of Common Pleas is affirmed. Stark County, Case No. 2015CA00058 17

By: Delaney, J. and

Gwin, P.J.

Wise, J., concur.