State v. Stapleton, Case No. 19CA7

Citation2020 Ohio 4479
Decision Date10 September 2020
Docket NumberCase No. 19CA7
PartiesSTATE OF OHIO, Plaintiff-Appellee, v. JVON STAPLETON, Defendant-Appellant.
CourtUnited States Court of Appeals (Ohio)

DECISION AND JUDGMENT ENTRY

APPEARANCES:

Jerry L. McHenry, Pickerington, Ohio, for appellant.

Judy C. Wolford, Pickaway County Prosecuting Attorney, and Heather MJ Carter, Assistant Pickaway County Prosecuting Attorney, Circleville, Ohio, for appellee.

CRIMINAL APPEAL FROM COMMON PLEAS COURT

ABELE, J.

{¶ 1} This is an appeal from a Pickaway County Common Pleas Court judgment of conviction and sentence. Jvon Stapleton, defendant below and appellant herein, assigns the following errors for review:

FIRST ASSIGNMENT OF ERROR:
"THE TRIAL COURT ERRED BY PERMITTING THE INTRODUCTION OF HEARSAY EVIDENCE BY DETECTIVE MAHER. THE APPELLANT WAS DENIED HIS RIGHT TO A FAIR TRIAL, DUE PROCESS OF LAW, HIS RIGHT TO CONFRONT WITNESSES AND EQUAL PROTECTION OF THE LAW WHEN THE DETECTIVE TESTIFIED AS TO HEARSAY EVIDENCE, WHICH WAS EVIDENCE SPOKEN OR WRITTEN BY SOME OTHER PERSON(S) WHO WERE NOT PRESENT AND WHO DID NOT TESTIFY. THIS WAS IN VIOLATION OF THE FIFTH, SIXTH, EIGHTH AND
FOURTEENTH AMENDMENTS OF THE UNITED STATES CONSTITUTION AND ARTICLE I, SECTION 10 OF THE OHIO CONSTITUTION."
SECOND ASSIGNMENT OF ERROR:
"EVIDENCE OF THE PUTATIVE CELL PHONE, CELL PHONE EXTRACTIONS, TEXT MESSAGES A FACEBOOK ACCOUNT, AND A VIDEO RECORDING OF C.D. MASTURBATING WERE NOT PROPERLY AUTHENTICATED AS TO ORIGIN AND ACCURACY. THEY WERE IMPROPERLY ADMITTED INTO EVIDENCE AND DENIED APPELLANT HIS RIGHTS OF CONFRONTATION OF WITNESSES, AND A FAIR TRIAL IN VIOLATION OF THE FIFTH, SIXTH, EIGHTH AND FOURTEENTH AMENDMENTS OF THE UNITED STATES CONSTITUTION AND ARTICLE I, SECTION 10 OF THE OHIO CONSTITUTION."
THIRD ASSIGNMENT OF ERROR:
"THE TRIAL COURT ERRED BY SENTENCING APPELLANT TO MULTIPLE CONSECUTIVE PRISON TERMS WHEN THOSE FELONY COUNTS WERE ALLIED OFFENSES OF SIMILAR IMPORT, ALL INVOLVING THE SAME ANIMUS. THIS WAS IN VIOLATION OF OHIO REVISED CODE SECTION 2941.25. THIS WAS A VIOLATION OF APPELLANT'S RIGHT TO BE FREE FROM DOUBLE JEOPARDY, A FAIR TRIAL, AND DUE PROCESS OF LAW AND EQUAL PROTECTION OF THE LAW AS GUARANTEED HIM BY THE FIFTH, SIXTH, EIGHTH AND FOURTEENTH AMENDMENTS OF THE UNITED STATES CONSTITUTION AND ARTICLE I, SECTION 10 OF THE OHIO CONSTITUTION."
FOURTH ASSIGNMENT OF ERROR:
"DEFENSE COUNSEL RENDERED INEFFECTIVE ASSISTANCE OF COUNSEL TO THE APPELLANT BY FAILING TO OBJECT TO THE HEARSAY EVIDENCE AND THE UNAUTHENTICATED EVIDENCE, ALONG WITH FAILING TO OBJECT TO THE ADMISSION INTO EVIDENCE OF SIXTY-EIGHT (68) DIFFERENT EXHIBITS, ALL OF WHICH WERE PREDICATED UPON HEARSAY EVIDENCE OR UNAUTHENTICATED EVIDENCE. DEFENSE COUNSEL WAS INEFFECTIVE FOR FAILING TO OBJECT TO CONSECUTIVE SENTENCES IMPOSED UPON APPELLANT. THIS WAS A DENIAL OF APPELLANT'S RIGHT TO COUNSEL, A FAIR TRIAL, DUE PROCESS OF LAW AND EQUAL PROTECTIONS OF LAW GUARANTEED HIM BY THE FIFTH, SIXTH AND FOURTEENTH AMENDMENTS OF THE UNITED STATES CONSTITUTION AND ARTICLE I, SECTION 10 OF THE OHIO CONSTITUTION."

{¶ 2} On September 7, 2018, a Pickaway County grand jury returned an indictment that charged appellant with forty-three counts arising out of his communications with a minor. Counts one through nineteen charged appellant with pandering obscenity involving a minor, in violation of R.C. 2907.321(A)(5). Counts twenty through thirty-eight charged appellant with illegal use of a minor in nudity-oriented material or performance, in violation of R.C. 2907.322(A)(5). Counts thirty-nine and forty charged appellant with pandering sexually oriented matter involving a minor. Counts forty-one and forty-two charged appellant with disseminating matter harmful to juveniles, in violation of R.C. 2907.31(A)(1). Count forty-three charged appellant with attempted unlawful sexual conduct with a minor, in violation of R.C. 2923.02(A) and 2970.04(A). Appellant entered not guilty pleas to all counts.

{¶ 3} At trial, Circleville Police Detective Dan Maher testified that he is a member of the Franklin County Internet Crimes Against Children Task Force. Maher stated that task force members receive specialized training involving internet crimes against children and that the training includes cell phone forensics and procedures for analyzing and reviewing physical evidence. Maher stated that he has received data recovery certification for cell phones. After this initial inquiry, the trial court granted the state's request to qualify the detective as an expert in cell phone forensics and analysis.

{¶ 4} Detective Maher explained that on July 16, 2018, he obtained appellant's cell phone and "immediately put it in airplane mode." The detective stated that placing the phone in airplane mode would keep the phone in the same condition as when he recovered it. Maher related that, upon viewing the cell phone, he observed a picture of a naked female who appeared to be a minor. He thus took the phone to the police department and docketed it into evidence. The detective also sent a preservation request to Facebook.

{¶ 5} Detective Maher stated that he subsequently identified the minor as C.D. by taking a screenshot of her Facebook account that he found on appellant's cell phone. The detective contacted another detective who lived near the minor and asked this detective to reach out to the family. This other detective then obtained the minor's cell phone and gave it to Maher. Maher further explained that he spoke with the minor and confirmed that she was under the age of eighteen and that she is the individual depicted in the photographs found on appellant's cell phone. Detective Maher also performed a cell phone extraction of the minor's phone.

{¶ 6} Detective Maher indicated that when he extracted information from both appellant's and the minor's phone, he used a "cellebrite device, which is the most used cellular forensic tool." Maher related that the device reads the cell phone data and copies it.

{¶ 7} Detective Maher stated that after he extracted the data, he performed a search and generated a report of the conversations between appellant and the minor. The detective testified that the conversations began on July 14, 2018, at 1:24:50 a.m., when appellant sent a message to the minor that stated, "Hi this is Jay from Meet 24 [sic]." Maher explained that "Meet 24" is a dating cell phone application. After appellant sent his message, the minor responded, "Hi Jay." The two continued to exchange messages, and appellant eventually asked the minor to "send me some pictures please nothing bad [sic]." The conversation continued, and appellant kept pressing the minor to send him more and more photos in various states of undress. With each request, appellant asked the minor to expose more nudity. At first, appellant requested the minor send him photographs showing the victim wearing undergarments. Later, he asked the victim to send him a photograph that shows the victim with her legs spread without undergarments. The victim also sent appellant two videos that showed the victim masturbating. Additionally, appellant sent photographs of himself in various states of undress, as well as close-up photographs of his penis. All together, appellant sent the victim ten photographs of himself, either completely naked or of his erect penis. The victim sent appellant nineteen images that either depicted her vagina, breasts, or otherwise depicted her as nude.

{¶ 8} At the close of the evidence, the state asked the court to amend the indictment by dismissing count forty-three, attempted unlawful sexual conduct with a minor in violation of R.C. 2923.02(A) and 2970.04(A). The court granted the motion. Subsequently, the jury found appellant guilty of all offenses except count forty-two, one of the disseminating-matter-harmful-to-juveniles offenses.

{¶ 9} On February 25, 2019, the trial court sentenced appellant. The court first determined that the illegal-use-of-a-minor offenses merged with the pandering-obscenity-involving-a-minor offenses. The court ordered appellant to serve eighteen months in prison for each of the nineteen pandering obscenity offenses and for the two pandering sexually oriented matter involving a minor offenses. The court sentenced appellant to twelve months in prison for the disseminating matter harmful to juveniles offense. The court further ordered appellant to serve all of the sentences consecutively for a total sentence of three hundred ninety months. This appeal followed.

I

{¶ 10} Appellant's first and second assignments of error challenge the admission of certain evidence. For ease of discussion, we consider the assignments of error together.

{¶ 11} In his first assignment of error, appellant argues that the trial court erred by allowing the state to introduce inadmissible hearsay evidence at trial. Appellant contends that Detective Maher based most of his testimony on hearsay. Appellant notes that the detective based his testimony upon cell phone extractions, text messages, and information obtained from Facebook. Appellant asserts that all of the digital evidence obtained from the cell phone and from Facebook constitutes hearsay evidence, and that none of the exceptions to the hearsay rules allowed the state to introduce the evidence at trial. Appellant additionally alleges that allowing the state to introduce the evidence violated his right to confront the witnesses against him.

{¶ 12} In his second assignment of error, appellant contends that the state did not properly authenticate the evidence obtained from the cell phones or from Facebook.

{¶ 13} Appellant also recognizes that trial counsel did not object to the admission of the evidence at trial, but argues that trial counsel's failure to object means that appellant did not receive a fair trial.

A

{¶ 14} We first observe that Evid.R. 103(A)(1) provides that "error may not be predicated upon a ruling which admits or excludes evidence unless a substantial right of the party is affected"...

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