[Cite as State v. Van Tielen,

.]

IN THE COURT OF APPEALS

TWELFTH APPELLATE DISTRICT OF OHIO

BROWN COUNTY

STATE OF OHIO, :

Plaintiff-Appellee, : CASE NO. CA2018-02-002

: OPINION - vs - 8/27/2018 :

JOHN VAN TIELEN, :

Defendant-Appellant. :

CRIMINAL APPEAL FROM BROWN COUNTY COURT OF COMMON PLEAS Case No. 2010 2037

Zachary A. Corbin, Brown County Prosecuting Attorney, Mary McMullen, 510 East State Street, Suite 2, Georgetown, OH 45121, for plaintiff-appellee

John Van Tielen, #A629095, Chillicothe Correctional Institution, 15802 State Route North 104, Chillicothe, Ohio 45601, pro se

S. POWELL, P.J.

{¶ 1} Defendant-appellant, John Van Tielen, appeals the decision of the Brown

County Court of Common Pleas denying his motion for return of property after he pled guilty

to four counts of pandering sexually-oriented material involving a minor. For the reasons

outlined below, we affirm. Brown CA2018-02-002

Facts and Procedural History

{¶ 2} Van Tielen is no stranger to this court having previously filed several appeals

related to his conviction and sentence. State v. Van Tielen, 12th Dist. Brown No. CA2010-

06-011 (Mar. 7, 2011) (Accelerated Calendar Judgment Entry), appeal not accepted,

,

; State v. Van Tielen, 12th Dist. Brown No. CA2012-04-

007,

, appeal not accepted,

,

; State v.

Van Tielen, 12th Dist. Brown No. CA2013-11-012,

, appeal not accepted,

,

; and State v. Van Tielen, 12th Dist. Brown No.

CA2015-09-025,

.

{¶ 3} Van Tielen was arrested after a multi-state investigation was conducted

regarding the sharing of child pornography over the internet. As part of this investigation, a

search warrant was issued, which led to the discovery of photographs depicting graphic

child pornography on Van Tielen's computer. After entering into a plea agreement, Van

Tielen pled guilty to four counts of pandering sexual-oriented material involving a minor.

The trial court accepted Van Tielen's guilty plea and sentenced Van Tielen to serve a

mandatory total aggregate sentence of 24 years in prison. It is undisputed the prison

sentence imposed by the trial court was mandatory due to Van Tielen having previously

been convicted of rape and attempted rape.

{¶ 4} While most of Van Tielen's previous appeals challenged his underlying

conviction and sentence, this appeal involves Van Tielen's motion for return of property. As

part of this motion, Van Tielen requested the trial court return to him the computer, "thumb

drives," and "SD cards" confiscated by the Brown County Sheriff's Office during the

execution of the search warrant.1 The trial court denied Van Tielen's motion upon finding

1. Often referred to as a flash drive, data stick, or pen drive, a "thumb drive" is a portable storage device used to store high volumes of data, such as digital photographs. Similarly, an "SD card" is a portable memory card -2- Brown CA2018-02-002

Van Tielen's request was barred by the doctrine of res judicata.

{¶ 5} Finding a procedural defect in the trial court's decision, this court reversed the

trial court's decision in State v. Van Tielen, 12th Dist. Brown No. CA2016-10-020, 2017-

Ohio-2799. In so holding, this court found "[t]he trial court could not have considered the

forfeiture issue until Van Tielen filed his motion [for return of property]. Accordingly, we find

the trial court erred by resolving this issue on the basis of res judicata." Id. at ¶ 14. The

matter was then remanded to the trial court "for a determination of whether Van Tielen's

property is subject to return or forfeiture based on relevant law." Id.

{¶ 6} Upon remand, Van Tielen filed a "Motion in Support of Appellate Courts

Decision" arguing the computer, thumb drives, and SD cards at issue were not subject to

forfeiture and should be returned to him. Several months after Van Tielen filed his motion,

but prior to when the trial court issued its decision, the state filed a memorandum at the trial

court's request indicating the Brown County Sheriff's Office had in its possession only Van

Tielen's computer, but not any thumb drives or SD cards. Because Van Tielen's computer

contained – and likely still contains – photographs depicting graphic child pornography, the

state argued Van Tielen's computer was contraband that contained obscene material

subject to destruction in accordance with R.C. 2901.01(A)(13) and 2981.12(A)(3).

{¶ 7} Van Tielen filed a motion to strike the state's memorandum. In support, Van

Tielen argued the state's memorandum was untimely in that it was filed several months

after his motion for return of property. The trial court denied Van Tielen's motion to strike.

In reaching this decision, the trial court noted that it had requested the state to provide the

trial court with "information as to what property was actually in the possession of the Brown

County Sheriff's Office or the Prosecuting Attorney." The state's memorandum, therefore,

designed to provide high-capacity data storage that is used in many small portable devises such as digital video camcorders, digital cameras, mobile phones, and computers. -3- Brown CA2018-02-002

was not subject to the trial court's local rules setting forth filing deadlines for responsive

memoranda.

{¶ 8} After denying Van Tielen's motion to strike, the trial court issued a decision

overruling Van Tielen's motion for return of property. In so holding, the trial court noted that

no evidence was ever admitted to the trial court due to Van Tielen's guilty plea. The trial

court also noted that based on the state's memorandum, the only property in the possession

of either the state or the Brown County Sheriff's Office was Van Tielen's computer, a

computer that Van Tielen admitted contained photographs depicting graphic child

pornography through his guilty plea. Therefore, because Van Tielen's computer was the

only property in the possession of either the state or the Brown County Sheriff's Office, the

trial court declined to make any order regarding the thumb drives or SD cards Van Tielen

alleged was in their possession. As the trial court stated, "[h]opefully they were destroyed

as contraband."

Appeal

{¶ 9} Van Tielen now appeals from the trial court's decision denying his motion for

return of property, raising three assignments of error for review.

{¶ 10} Assignment of Error No. 1:

{¶ 11} THE TRIAL COURT ERRED WHEN IT FOUND THE COMPUTER TOWER

CONTAINED CONTRABAND AND MUST BE DESTROYED.

{¶ 12} In his first assignment of error, Van Tielen argues the trial court erred by

finding the computer confiscated by the Brown County Sheriff's Office contained

contraband; specifically, photographs depicting graphic child pornography. We disagree

with Van Tielen's claim for the record is clear that the computer at issue contained – and

likely still contains – photographs depicting graphic child pornography. Van Tielen's claim

otherwise is simply incorrect.

-4- Brown CA2018-02-002

{¶ 13} As noted above, Van Tielen pled guilty to four counts of pandering sexual-

oriented material involving a minor regarding these same, or substantially similar,

photographs. As a result, should this court find error in the trial court's decision, thereby

ordering the computer at issue be returned to Van Tielen, a convicted rapist currently

serving a mandatory 24-year prison sentence, would subject Van Tielen to further

prosecution for again possessing photographs depicting graphic child pornography.

Therefore, considering Van Tielen's own interests in avoiding further prosecution, the trial

court did not err by denying Van Tielen's motion for return of property.

{¶ 14} Simply stated, regardless of any default that may have been made in applying

the forfeiture statute, because the computer at issue contained photographs depicting

graphic child pornography, the computer and its hard drives must be destroyed. The same

is true regarding the thumb drives and SD cards had those items been located. This is

because, as the Ohio Supreme Court noted, computer files that have been deleted may

oftentimes still be recovered. State ex rel. Toledo Blade Co. v. Seneca Cty. Bd. of

Commissioners,

,

, ¶ 24-25, citing Haig, 2 Business and

Commercial Litigation in Federal Courts (2d Ed. 2007), Section 21:33 ("[e]lectronic data that

has been deleted is often retrievable through back-up systems").

{¶ 15} As noted by the United States Supreme Court in Bennis v. Michigan,

(1996), forfeiture of property prevents further illicit use of the property. Therefore,

because the computer at issue contained – and likely still contains – photographs depicting

graphic child pornography, the property at issue must be destroyed. Nobody should be in

possession of such property, let alone someone in Van Tielen's position. Van Tielen's first

assignment of error lacks merit and is overruled.

{¶ 16} Assignment of Error No. 2:

{¶ 17} THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION WHEN IT

-5- Brown CA2018-02-002

DECLINED TO ORDER THE RETURN OF THE REMAINDER OF DEFENDANT'S

PROPERTY.

{¶ 18} In his second assignment of error, Van Tielen argues the trial court erred by

denying his request to order the state and the Brown County Sheriff's Office to return the

thumb drives and SD cards confiscated during the execution of the search warrant. The

trial court, however, found neither the state nor the Brown County Sheriff's Office had any

of those items in their possession. The trial court cannot order the return of property that

neither the state nor the Brown County Sheriff's Office possess. See, e.g., State v. Graham,

12th Dist. Warren No. CA2014-04-062,

, ¶ 30 (affirming trial court's decision

denying appellant's motion for return of property where the "items of personal property"

requested were not in the state's possession).

{¶ 19} Moreover, just as the trial court found, because the thumb drives and SD

cards confiscated by the Brown County Sheriff's Office may have contained photographs

depicting graphic child pornography, we hope these items have since been destroyed as

contraband. Again, as this court stated previously, nobody should be in possession of such

property, let alone someone in Van Tielen's position. Van Tielen's claim otherwise lacks

merit.

{¶ 20} Van Tielen claims this case is analogous to a situation where your neighbor

loses a piece of your lawn equipment. Van Tielen also claims this case is akin to a situation

where "the Sherriff's Office had seized a large sum of money, say a couple hundred

thousand dollars, that had subsequently 'gone missing' and could no longer be found[.]"

We disagree with Van Tielen's claims. Unlike a case where a neighbor loses another's lawn

equipment, or a case in which a law enforcement agency misplaces "a large sum of money,"

this case involves property that contained photographs depicting graphic child pornography.

Once again, nobody should be in possession of such property, let alone someone in Van

-6- Brown CA2018-02-002

Tielen's position. Van Tielen's second assignment of error lacks merit and is overruled.

{¶ 21} Assignment of Error No. 3:

{¶ 22} THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION WHEN IT

ACCEPTED APPELLEE'S RESPONSE FILED MORE THATN (sic) FIVE MONTHS LATE

WITHOUT GOOD CAUSE.

{¶ 23} In his third assignment of error, Van Tielen argues the trial court erred by

denying his motion to strike the state's memorandum as untimely in accordance with the

trial court's local rules. However, as the record indicates, the trial court requested the state

to file the challenged memorandum so that it would have "information as to what property

was actually in the possession of the Brown County Sheriff's Office or the Prosecuting

Attorney." The state's memorandum, therefore, was not subject to the trial court's local

rules setting forth when responsive memoranda must be filed. How a trial court manages

its docket is wholly within the trial court's discretion. In re J.T.S., 12th Dist. Preble No.

CA2014-09-009,

, citing Paramount Parks, Inc. v. Admiral Ins. Co.,

12th Dist. Warren No. CA2007-05-066,

(reiterating that "[i]t is well-

settled that a trial court has the inherent power to control its own docket and the progress

of the proceedings in its court"). There is no abuse of that discretion here. Van Tielen's

third assignment of error lacks merit and is overruled.

Conclusion

{¶ 24} As the trial court stated in its decision overruling Van Tielen's motion for return

of property, "[t]his court will not make any order returning child pornography to a convicted

sex offender unless it is ordered to do so by a higher court." This court declines to make

such an order. Therefore, finding no error in the trial court's decision denying Van Tielen's

motion for return of property; specifically, the computer, thumb drives, and SD cards

confiscated by the Brown County Sheriff's Office during the execution of the search warrant,

-7- Brown CA2018-02-002

the trial court's decision to deny Van Tielen's motion for return of property is affirmed.

{¶ 25} Judgment affirmed.

HENDRICKSON and PIPER, JJ., concur.

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