State v. Eal
| Decision Date | 29 March 2012 |
| Docket Number | No. 11AP-460,11AP-460 |
| Citation | 2012 Ohio 1373 |
| Parties | State of Ohio, Plaintiff-Appellee, v. Nathan R. Eal, Defendant-Appellant. |
| Court | Ohio Court of Appeals |
(REGULAR CALENDAR)
DECISION
Ron O'Brien, Prosecuting Attorney, and Seth L. Gilbert, for appellee.
Shaw & Miller, and Mark J. Miller, for appellant.
APPEAL from the Franklin County Court of Common Pleas.
{¶ 1} Defendant-appellant, Nathan R. Eal, appeals from a judgment of the Franklin County Court of Common Pleas finding him guilty, pursuant to no contest pleas, of ten counts of pandering sexually oriented matter involving a minor, felonies of the second degree, and ten counts of pandering sexually oriented matter involving a minor, felonies of the fourth degree. Because (1) the trial court did not err in denying defendant's pretrial motions, (2) defendant suffered no prejudice from the trial court's failure to rule on his Crim.R. 12(F) motion, (3) the trial court properly refused to merge all counts in the indictment, (4) the trial court did not plainly err in imposing conditions of communitycontrol, (5) defendant's Tier II sex offender registration requirements are constitutional, and (6) the trial court did not err in failing to stay the registration requirements, we affirm.
{¶ 2} On September 7, 2009, the National Center for Missing and Exploited Children ("NCMEC") sent the Franklin County Internet Crimes Against Children Task Force ("FCICAC") a "cyber tip" indicating that on April 8, 2009 a user of an Internet Protocol ("IP") address registered to defendant's house in Galloway, Ohio uploaded 14 files of suspected child pornography to an internet website; it also forwarded a disk with copies of the images. FCICAC received another tip on September 14, 2009 from a detective with the Seattle Police Department who received a cyber tip indicating that on March 10, 2009 a Yahoo account owner, using an IP address registered to defendant's house, uploaded suspected child pornography to an internet website. Officer Priest, an Upper Arlington police officer assigned to FCICAC, examined the images and concluded the images met the statutory definition of child pornography.
{¶ 3} With that information, police secured a warrant to search defendant's house. Police executed the warrant on September 16, 2009, seizing and searching all of the computers in defendant's household and interviewing defendant during the search. The forensic preview of the computer located in defendant's bedroom revealed images of child pornography. By indictment filed February 26, 2010, defendant was charged with ten counts of pandering sexually oriented matter involving a minor, in violation of R.C. 2907.322(A)(1) and/or (2) and ten counts of pandering sexually oriented matter involving a minor, in violation of R.C. 2907.322(A)(5).
{¶ 4} In response, defendant filed a number of pretrial motions, including (1) motions to suppress the evidence obtained from the search of his house and the statements he made to law enforcement officers, (2) a motion challenging the constitutionality of R.C. 2907.322, and (3) motions to dismiss the indictment based on lack of effective expert assistance and insufficient particularity. The trial court held a hearing on defendant's various motions on January 11, 2011 and denied them all on March 16, 2011.
{¶ 5} In light of those rulings, defendant entered a plea of no contest to the charges on March 23, 2011. The court accepted defendant's plea and found him guilty of all counts. Defendant filed a motion requesting the court to merge counts one through twenty for purposes of sentencing. The court granted it in part, merged counts eleven through twenty with counts one through ten, sentenced defendant to four years of community control and classified him a Tier II sex offender.
{¶ 6} On appeal, defendant assigns the following errors:
For ease of discussion, we address defendant's assignments of error out of order.
{¶ 7} Defendant's second assignment of error asserts the trial court erred in denying his motion to suppress the evidence retrieved from the search of his home. Defendant contends the affidavit supporting the warrant lacked sufficient informationto establish probable cause, the affidavit included stale information, and the police failed to properly execute the warrant.
{¶ 8} Defendant contends the affidavit supporting the warrant failed to establish probable cause. The Fourth Amendment to the United States Constitution requires that warrants issue only "upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized." See also R.C. 2933.22(A); Crim.R. 41(C).
{¶ 9} In determining probable cause from an affidavit submitted to support a search warrant, the issuing magistrate must " 'make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit before him, including the "veracity" and "basis of knowledge" of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place.' " State v. George, 45 Ohio St.3d 325 (1989), paragraph one of the syllabus, following Illinois v. Gates, 462 U.S. 213, 238-239, 103 S.Ct. 2317 (1983). By contrast, a reviewing court should not conduct a de novo review of a magistrate's determination of probable cause, but reviews the warrant "simply to ensure that the magistrate had a substantial basis for concluding that probable cause existed," according "great deference to the magistrate's determination of probable cause," and resolving "doubtful or marginal cases * * * in favor of upholding the warrant." Id. at paragraph two of the syllabus.
{¶ 10} Probable cause means less evidence than would justify condemnation, so that only the "probability, and not a prima facie showing, of criminal activity is the standard of probable cause." Id. at 329 (internal quotations and emphasis omitted). In determining whether probable cause supports a search warrant, the issuing judge generally is confined to the averments contained in the supporting affidavit. State v. Yanowitz, 67 Ohio App.2d 141, 144 (8th Dist.1980).
{¶ 11} Here, a Franklin County Municipal Court judge approved the warrant on September 16, 2009. The affidavit supporting the warrant stated FCICAC received two separate cyber tips indicating that an IP address registered to defendant's household uploaded files of "suspected child pornography" to the internet. According to the affidavit,the Yahoo account owner who uploaded the suspected child pornography was "Mr. B L using a screen name of 'luvsboys69' for Yahoo and 'blpicmaster' for Flicr.com[.]" In the affidavit, Officer Priest described the images as depicting "young preteen boys who where [sic] in various stages of undress." (State's Exhibit A.) Priest stated that, based on his training and experience, "users of child pornography will maintain a collection of the child pornography on a wide array of digital storage media." (State's Exhibit A.)
{¶ 12} Relying primarily on United States v. Brunette, 256 F.3d 14 (1st Cir.2001), defendant contends the affidavit fails to establish probable cause because Officer Priest did not attach the actual images to the affidavit but merely described the images as depicting preteen boys "in various stages of undress." (Appellant's brief, 7.) As a decision of a federal circuit court, Brunette is not binding authority on this court, though we examine its reasoning to determine its persuasiveness on the facts presented. State v. Burnett, 93 Ohio St.3d 419, 424 (2001).
{¶ 13} In Brunette, the court found a search warrant affidavit insufficient to establish probable cause where, although it described the images as depicting a "prepubescent boy lasciviously displaying his genitals," it did not attach to the affidavit the actual images involved. Id. at 16-17. According to Brunette, identifying an image as lascivious required "inherent subjectivity" that only the issuing magistrate could determine. Id. at 18. As a result, the appellate court determined the magistrate in Bru...
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