State v. Cassel, 26708.

Citation66 N.E.3d 318
Decision Date17 June 2016
Docket NumberNo. 26708.,26708.
Parties STATE of Ohio, Plaintiff–Appellee v. Terry R. CASSEL, Defendant–Appellant.
CourtUnited States Court of Appeals (Ohio)

Mathias H. Heck, Jr., by Andrew T. French, Montgomery County Prosecutor's Office, Dayton, OH, for PlaintiffAppellee.

Terry L. Lewis, Terry L. Lewis Co., L.P.A., Dayton, OH, for DefendantAppellant.

OPINION

FAIN, J.

{¶ 1} Defendant-appellant Terry R. Cassel appeals from his conviction and sentencing for one count of the illegal use of a minor in nudity-oriented materials in violation of R.C. 2907.323. Cassel argues that the trial court erred by overruling his motion to dismiss the indictment, his Crim.R. 29 motion for an acquittal, and his motion to suppress. Cassel also argues that the trial court erred by considering evidence of motive and by failing to identify which of the photos met the elements of the charged offense. The State argues that an indictment that includes the statutory elements is sufficient, that probable cause was established for the issuance of a search warrant, and that sufficient evidence was presented to support the conviction. The State argues that Cassel's motive for possessing the photos was relevant to rebut his affirmative defense that he used the photos for artistic purposes. The State also asserts that the trial court did sufficiently identify the basis for its guilty verdict.

{¶ 2} We conclude that the indictment sufficiently identifies the elements of the statute, and that probable cause for the issuance of a search warrant was established. We also conclude that evidence of motive was relevant to Cassel's affirmative defense. We conclude that the trial court did not err in overruling the Rule 29 motion to dismiss, because sufficient evidence was presented to prove all elements of the charged offense. We also conclude that the trial court is not required to identify which of the photos was the basis of its verdict, as long as the evidence is sufficient to support the conviction.

I. Photos of Nude Children Stored in Home Computer

{¶ 3} Cassel was an art teacher for the Dayton City Schools for 26 years. He has a bachelor's degree and a master's degree in art education. Cassel retired from the school system in 1996, and then started a home improvement company. As a hobby, Cassel creates art through sculpture, painting, and drawing. Cassel primarily focuses his art on biblical subjects, such as angels. He also does nature and landscape drawings. Cassel uses photographs as a resource for his art, and retained many photographs on his home computer.

{¶ 4} After separating, Cassel's estranged wife provided information to the police, stating that Cassel had photos of nude children on his home computer. Mrs. Cassel's grandson also told police that he had seen photos or videos on Cassel's computer depicting minors engaged in sexual activity. A search warrant was executed and two computers were seized from Cassel's residence. No photos or videos were found that depict persons engaged in sexual activity.

II. The Course of Proceedings

{¶ 5} Cassel was indicted on one count of the illegal use of a minor in nudity-oriented materials, in violation of R.C. 2907.323(A)(3), a felony of the second degree. Cassel filed a motion to suppress, a demand for a bill of particulars, a motion to quash the indictment, four motions to dismiss, and three motions in limine.

{¶ 6} To obtain the indictment, the grand jury was shown a total of 93 photos seized from Cassel's home and from his computers. Cassel argues that neither the written indictment, Dkt. # 5, nor the instructions to the grand jury, included any language other than the terms of the statute, R.C. 2907.323(A)(3), omitting the phrase established by case law that narrows the application of the statute to possessing photographs of a minor in the state of nudity only when the nudity constitutes a lewd exhibition or involves a graphic focus on the minor's genitals. The trial court overruled the motion to dismiss or quash the indictment, concluding that the indictment sufficiently recited the elements of the statute.

{¶ 7} At the hearing on the motion to suppress, the State presented the testimony of the two officers who obtained and served the search warrant. Both officers confirmed that the affidavit they prepared to obtain the search warrant was based on their interview of Cassel's ex-wife and her grandson. The officers stated that Mrs. Cassell reported to them that Cassel had photos on his computer and in books depicting nude children. Mrs. Cassel's grandson corroborated these allegations by reporting that he had seen photos or videos on Cassel's computer depicting minors engaged in sexual intercourse. Mrs. Cassel also gave the officers a CD of images downloaded from Cassel's computer and a diary. The officers acknowledged that Mrs. Cassel did not report that any of the photos or books depicted lewd behavior or focused on genitalia. The officers also acknowledged that no photos were found on the CD, or on Cassell's computers, depicting sexual activity, and nothing in the diary admitted to viewing or possessing lewd, or sexually graphic, photos or videos.

{¶ 8} Cassel testified at the suppression hearing. Cassel acknowledged that he made a written statement to the police, Ex. 32, that included a statement that he had been looking at computer images of nude boys, and occasionally nude boys having sex, and that he needed help so that he would not act upon his impulses. In his testimony at the suppression hearing, Cassel recanted his statement, contending that he was intimidated by the officers arriving at his house with sirens blaring, tearing up his house, invading his privacy looking for photos, and telling him that the judge would be lenient, and it would go a lot better for him, if he admitted to it and asked for help. He was also upset that his ex-wife would do this to him. Both officers, who served the search warrant and were present when Cassel wrote out a statement, testified that no threats or promises were made to obtain his statement. It was stipulated that a proper Miranda warning was given prior to obtaining Cassel's statement.

{¶ 9} The trial court overruled the motion to suppress, finding that sufficient probable cause was established for the search warrant. Based on the statements the officers had obtained from Mrs. Cassel and her grandson, the trial court concluded that there was a fair probability that evidence of a crime would be found at Cassel's residence.

{¶ 10} The trial court denied in part, and granted in part, the motion in limine, by excluding many of the photos presented by the State, allowing 25 of the 93 photos to be introduced as evidence. Cassel also filed a motion to dismiss prior to trial, and made a Crim.R. 29 motion to dismiss at the close of the State's case, upon the ground that none of the photos depicted minors in a state of nudity that was lewd or involved a graphic focus on the minor's genitals. The trial court overruled Cassel's motion to dismiss, concluding that one or more of the photos met the definition of a minor in the state of nudity.

{¶ 11} Cassel waived his right to a jury trial, and the evidence was presented to the court in a bench trial. Cassel testified at trial, stating that he downloaded the photos marked as Exhibits 1–25 from sources on the internet. Cassel stated that he used the photos as resources for his art. The parties stipulated that Cassel was not the parent or guardian of any child depicted in the photos. There was no evidence that Cassel actually took any of the photos himself, or had direct contact with any child depicted in the photos. Cassel testified that Exhibits 16–22 were reproductions downloaded from a Library of Congress collection of photographs from a famous turn-of-the-century photographer, Edward Weston. At trial, Cassel again recanted his written statement made to the police at the time the search warrant was issued, and said it was not accurate because he had no photos showing sex acts.

{¶ 12} Based on the evidence presented, the trial court found Cassel guilty of one count of illegal use of a minor in nudity oriented materials. Cassel was sentenced to serve five years of community control sanctions, including registration as a Tier 1 sex offender. From his conviction and sentencing, Cassel appeals.

III. Standard of Review

{¶ 13} Because a trial court exercises discretion in its decision to exclude or admit evidence, our standard of review on appeal is whether the trial court committed an abuse of discretion that amounted to prejudicial error. State v. Graham, 58 Ohio St.2d 350, 390 N.E.2d 805 (1979) ; State v. Morris, 132 Ohio St.3d 337, 2012-Ohio-2407, 972 N.E.2d 528, ¶ 19. Under an abuse of discretion standard, we will review the issues of whether the trial court properly admitted evidence of motive and whether the trial court was required to identify which of the photos met the elements of the charged offense. "Generally, abuse of discretion occurs when a decision is grossly unsound, unreasonable, illegal, or unsupported by the evidence." State v. Nichols, 195 Ohio App.3d 323, 2011-Ohio-4671, 959 N.E.2d 1082, ¶ 16 (2d Dist.) ; State v. Beechler, 2d Dist. Clark No. 09CA54, 2010-Ohio-1900, 2010 WL 1731784, ¶ 60–70. A decision is unreasonable if there is no sound reasoning process that would support that decision. State v. Jones, 2d Dist. Montgomery Nos. 25315 & 25316, 2013-Ohio-1925, 2013 WL 1944001, ¶ 32 ; State v. LeGrant, 2d Dist. Miami No. 2013–CA–44, 2014-Ohio-5803, 2014 WL 7463132, ¶ 7. When applying the abuse of discretion standard, an appellate court may not merely substitute its judgment for that of the trial court. Berk v. Matthews, 53 Ohio St.3d 161, 169, 559 N.E.2d 1301 (1990).

{¶ 14} In ruling on a motion to suppress, the trial court "assumes the role of the trier of fact, and, as such, is in the best position to resolve questions of fact and evaluate the credibility of the witnesses." State v....

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