[Cite as State v. Underwood, 2011-Ohio-5703.]


STATE OF OHIO                    )                   IN THE COURT OF APPEALS
                                 )ss:                NINTH JUDICIAL DISTRICT
COUNTY OF MEDINA                 )

STATE OF OHIO                                        C.A. No.    10CA0048-M

        Appellee

        v.                                           APPEAL FROM JUDGMENT
                                                     ENTERED IN THE
RAYMOND F. UNDERWOOD                                 COURT OF COMMON PLEAS
                                                     COUNTY OF MEDINA, OHIO
        Appellant                                    CASE No.   09-CR-0394

                                DECISION AND JOURNAL ENTRY

Dated: November 7, 2011



        CARR, Judge.

        {¶1}    Appellant, Raymond Underwood, appeals the judgment of the Medina County

Court of Common Pleas. This Court affirms.

                                                I.

        {¶2}    On September 24, 2009, Underwood was indicted on one count of illegal use of a

minor in nudity-oriented material or performance in violation of R.C. 2907.323(A)(3), a felony

of the fifth degree. He pleaded not guilty at arraignment.

        {¶3}    On November 12, 2009, Underwood filed a motion to suppress. On January 7,

2010, Underwood filed a “voluntary dismissal” of his motion to suppress and requested that the

trial court cancel the suppression hearing scheduled for January 15, 2010. The trial court

acknowledged Underwood’s dismissal of his motion and cancelled the suppression hearing. On

February 3, 2010, Underwood filed a renewed motion to suppress, citing a recently decided
                                                 2


opinion by the Ohio Supreme Court. The trial court held a suppression hearing and subsequently

denied the motion.

          {¶4}   The matter proceeded to trial. The jury found Underwood guilty of the indicted

offense. The trial court classified Underwood as a Tier I child victim offender and sentenced

him to one year in prison. Underwood filed a timely appeal, raising two assignments of error for

review.

                                                 II.

                                  ASSIGNMENT OF ERROR I

          “THE TRIAL COURT ERRED BY DENYING DEFENDANT’S MOTION TO
          SUPPRESS EVIDENCE OBTAINED THROUGH THE OFFICER’S
          WARRANTLESS SEARCH OF HIS CELL PHONE IN VIOLATION OF THE
          FOURTH AMENDMENT, BASED ON THE DECISION OF THE OHIO
          SUPREME COURT IN STATE V. SMITH, 124 OHIO ST.3D 163, 2009 OHIO
          6426[.]”

          {¶5}   Underwood argues that the trial court erred by denying his motion to suppress

images obtained from his cell phone. This Court disagrees.

          {¶6}   “The review of a motion to suppress presents a mixed question of fact and law for

an appellate court.” State v. Farris, 9th Dist. No. 03CA0022, 2004-Ohio-826, at ¶7, citing State

v. Long (1998), 127 Ohio App.3d 328, 332. This Court must accept the trial court’s factual

determinations made during the suppression hearing, as long as they are supported by competent

and credible evidence. Farris at ¶7; State v. Robinson (Oct. 25, 2000), 9th Dist. No. 19905.

This Court, however, must review the trial court’s application of the law to those facts de novo.

Farris at ¶7; State v. Searls (1997), 118 Ohio App.3d 739, 741.

          {¶7}   The Fourth Amendment to the United States Constitution and Section 14, Article

I of the Ohio Constitution enunciate the right of persons to be free from unreasonable searches

and seizures. The constitutional protections, significantly, prohibit unreasonable searches and
                                                3


seizures, not simply every search and seizure. “[A] search conducted without a warrant issued

upon probable cause is ‘per se unreasonable … subject only to a few specifically established and

well-delineated exceptions.’” Schneckloth v. Bustamonte (1973), 412 U.S. 218, 219, quoting

Katz v. United States (1967), 389 U.S. 347, 357. The State bears the burden of establishing that

a warrantless search fell within one of the established exceptions to the warrant requirement.

Akron v. Gardner, 9th Dist. No. 22062, 2004-Ohio-7165, at ¶15, citing State v. Kessler (1978),

53 Ohio St.2d 204, 207. “It is *** well settled that one of the specifically established exceptions

to the requirements of both a warrant and probable cause is a search that is conducted pursuant to

consent.” Schneckloth, 412 U.S. at 219, citing Davis v. United States (1946), 328 U.S. 582, 593-

94.

       {¶8}    The charge against Underwood arose after police stopped his vehicle for a traffic

violation. An intoxicated female, who was fourteen years old, was asleep in the passenger seat.

Underwood does not dispute that the police officer legally seized his cell phone. He argues,

however, that the officer improperly retrieved data stored on the cell phone. The cell phone

contained still and video images of the minor victim’s genitals and of Underwood and the minor

engaged in sexual (vaginal) intercourse.

       {¶9}    At the suppression hearing, Underwood’s counsel conceded that a videotaped

recording of the traffic stop established that Underwood gave the police officer consent to search

the contents of his cell phone. He argued, however, that the Ohio Supreme Court’s decision in

State v. Smith, 124 Ohio St.3d 163, 2009-Ohio-6426, obliterated all exceptions to the warrant

requirement in regard to the seizure of data on a cell phone except for searches incident to a

lawful arrest when the search is either necessary for the safety of law enforcement officers or
                                                   4


exigent circumstances exist. This Court concludes that Underwood miscomprehends the high

court’s holding.

        {¶10} Smith involved a defendant who was arrested on suspicion of several drug related

offenses. Smith’s cell phone was seized during a search incident to a lawful arrest. While Smith

was being booked at the police station, officers accessed the data on his cell phone and learned

that Smith had been in communication with a woman who had agreed with the police to arrange

to purchase drugs from Smith. Smith moved to suppress the data seized from his cell phone as

violative of his Fourth Amendment rights. The trial court denied the motion based on the

decision in United States v. Finley (C.A.5, 2007), 477 F.3d 250, which likened cell phones to

containers found on an arrestee’s person and subject to search incident to a lawful arrest. The

Second District Court of Appeals affirmed. State v. Smith, 2d Dist. No. 07-CA-47, 2008-Ohio-

3717.   On appeal, the Ohio Supreme Court reversed, concluding that cell phones do not

constitute “closed containers” for purposes of Fourth Amendment analysis. Smith, 124 Ohio

St.3d 163, 2009-Ohio-6426, at ¶20. Noting the multifunctional nature of cell phones which

gives rise to a higher expectation of privacy due to the breadth of data such devices store, the

high court held that the police may not conduct a search of the contents of a cell phone seized

incident to a lawful arrest in the absence of exigent circumstances or concern for officer safety

without first obtaining a warrant. Id. at ¶21-4.

        {¶11} The Smith court expressly limited its holding, “[g]iven the particular facts of

[that] case[.]” Id. at ¶1. Significantly, the high court noted that the police had neither a warrant,

nor Smith’s consent to search the phone.           The supreme court has recognized six distinct

exceptions to the warrant requirement, to wit: “(a) A search incident to a lawful arrest; (b)

consent signifying waiver of constitutional rights; (c) the stop-and-frisk doctrine; (d) hot pursuit;
                                                 5


(e) probable cause to search, and the presence of exigent circumstances; or (f) the plain-view

doctrine.” State v. Akron Airport Post No. 8975, Veterans of Foreign Wars of U.S. (1985), 19

Ohio St.3d 49, 51. Smith involved a search incident to arrest. In holding that “[t]he warrantless

search of data within a cell phone seized incident to a lawful arrest is prohibited by the Fourth

Amendment when the search is unnecessary for the safety of law-enforcement officers and there

are no exigent circumstances[,]” Smith, at syllabus, the high court did not repudiate other

exceptions to the warrant requirement. It merely held that, unless exigent circumstances exist or

issues of officer safety are implicated, a search of cell phone data is unreasonable

notwithstanding the appropriate seizure of the cell phone itself during a search incident to arrest

because of the heightened expectation of privacy in such data. There is nothing in Smith which

indicates that the high court has overruled prior precedent which holds that a person’s consent to

search constitutes a valid waiver of his constitutional rights, thereby negating the requirement for

a warrant. In fact, the Smith court based its holding on the fact that the search of the cell phone

data was made in the absence of both a warrant and consent. Id. at ¶4.

       {¶12} Underwood misconstrues the Ohio Supreme Court’s holding in Smith. The high

court did not abrogate the validity of consent as an exception to the warrant requirement.

Underwood concedes that he consented to the officer’s search of data stored on his cell phone.

The holding in Smith, therefore, is not implicated and does not require the suppression of the

images found on his cell phone. The trial court did not err in denying the motion to suppress.

Underwood’s first assignment of error is overruled.
                                                6


                                ASSIGNMENT OF ERROR II

       “THERE WAS INSUFFICIENT EVIDENCE TO SUPPORT THE JURY’S
       VERDICT OF GUILTY, AND DEFENDANT-APPELLANT’S FELONY
       CONVICTION OF ILLEGAL USE OF A MINOR IN NUDITY ORIENTED
       MATERIAL OR PERFORMANCE WAS AGAINST THE MANIFEST
       WEIGHT OF THE EVIDENCE, WHERE THE MENS REA ELEMENT OF
       ‘RECKLESS’ WAS NOT ESTABLISHED BEYOND A REASONABLE
       DOUBT.”

       {¶13} Underwood argues that his conviction was not supported by sufficient evidence

and was against the manifest weight of the evidence. This Court disagrees.

       {¶14} A review of the sufficiency of the State’s evidence and the manifest weight of the

evidence adduced at trial are separate and legally distinct determinations. State v. Gulley (Mar.

15, 2000), 9th Dist. No. 19600. “While the test for sufficiency requires a determination of

whether the state has met its burden of production at trial, a manifest weight challenge questions

whether the state has met its burden of persuasion.” Id., citing State v. Thompkins (1997), 78

Ohio St.3d 380, 390 (Cook J., concurring). When reviewing the sufficiency of the evidence, this

Court must review the evidence in a light most favorable to the prosecution to determine whether

the evidence before the trial court was sufficient to sustain a conviction. State v. Jenks (1991),

61 Ohio St.3d 259, 279.

       “An appellate court’s function when reviewing the sufficiency of the evidence to
       support a criminal conviction is to examine the evidence admitted at trial to
       determine whether such evidence, if believed, would convince the average mind
       of the defendant’s guilt beyond a reasonable doubt. The relevant inquiry is
       whether, after viewing the evidence in a light most favorable to the prosecution,
       any rational trier of fact could have found the essential elements of the crime
       proven beyond a reasonable doubt.” Id. at paragraph two of the syllabus.

       {¶15} A determination of whether a conviction is against the manifest weight of the

evidence, however, does not permit this Court to view the evidence in the light most favorable to
                                                 7


the State to determine whether the State has met its burden of persuasion. State v. Love, 9th Dist.

No. 21654, 2004-Ohio-1422, at ¶11. Rather,

       “an appellate court must review the entire record, weigh the evidence and all
       reasonable inferences, consider the credibility of witnesses and determine
       whether, in resolving conflicts in the evidence, the trier of fact clearly lost its way
       and created such a manifest miscarriage of justice that the conviction must be
       reversed and a new trial ordered.” State v. Otten (1986), 33 Ohio App.3d 339,
       340.

       “Weight of the evidence concerns the tendency of a greater amount of credible
       evidence to support one side of the issue more than the other. Thompkins, 78
       Ohio St.3d at 387. Further when reversing a conviction on the basis that it was
       against the manifest weight of the evidence, an appellate court sits as a ‘thirteenth
       juror,’ and disagrees with the factfinder’s resolution of the conflicting testimony.
       Id.” State v. Tucker, 9th Dist. No. 06CA0035-M, 2006-Ohio-6914, at ¶5.

       {¶16} This discretionary power should be exercised only in exceptional cases where the

evidence presented weighs heavily in favor of the defendant and against conviction. Thompkins,

78 Ohio St.3d at 387.

       {¶17} Underwood was charged with illegal use of a minor in nudity-oriented material or

performance in violation of R.C. 2907.323(A)(3), which stated at the relevant time:

       “No person shall *** [p]ossess or view any material or performance that shows a
       minor who is not the person’s child or ward in a state of nudity, unless one of the
       following applies: (a) The material or performance is sold, disseminated,
       displayed, possessed, controlled, brought or caused to be brought into this state, or
       presented for a bona fide artistic, medical, scientific, educational, religious,
       governmental, judicial, or other proper purpose, by or to a physician,
       psychologist, sociologist, scientist, teacher, person pursuing bona fide studies or
       research, librarian, member of the clergy, prosecutor, judge, or other person
       having a proper interest in the material or performance. (b) The person knows that
       the parents, guardian, or custodian has consented in writing to the photographing
       or use of the minor in a state of nudity and to the manner in which the material or
       performance is used or transferred.”

       {¶18} The Ohio Supreme Court has recognized that “[b]ecause R.C. 2907.323 does not

specify any degree of culpability, the degree of culpability required to commit the offense is

recklessness.” State v. Tooley, 114 Ohio St.3d 366, 2007-Ohio-3698, at ¶37. “A person acts
                                                  8


recklessly when, with heedless indifference to the consequences, he perversely disregards a

known risk that his conduct is likely to cause a certain result or is likely to be of a certain nature.

A person is reckless with respect to circumstances when, with heedless indifference to the

consequences, he perversely disregards a known risk that such circumstances are likely to exist.”

R.C. 2901.22(C).

       {¶19} A minor, as that term is used in R.C. 2907.323(A)(3), means “a person under

eighteen years of age.” State v. Young (1988), 37 Ohio St.3d 249, paragraph two of the syllabus.

Sufficiency of the evidence

       {¶20} Underwood concedes that, on September 17, 2009, he possessed pictures and

videos of B.F. in a state of nudity on his cell phone. In fact, Underwood concedes that the State

proved all the elements of the charged offense with the exception of the mens rea. He argues

that the State failed to present sufficient evidence to show that he acted recklessly in regard to

B.F.’s age of minority.

       {¶21} At trial, B.F. testified that she was born on September 26, 1994. After finishing

eighth grade, B.F. spent the summer living with adult friends who owned an herbal remedies

business. She travelled with those friends to county fairs throughout Ohio, working in their

booth. She met Underwood at the Summit County fair while he was working in a windows sales

booth next to hers. B.F. and Underwood met again while working at the Cuyahoga County fair.

She testified that Underwood told her he was thirty-two years old and asked her how old she

was. Believing that Underwood wanted to make sure she was “legal to talk to,” B.F. testified

that she told him that she was eighteen, although she was really fourteen years old.

       {¶22} B.F. testified that she and Underwood went out on dates at least five times and

that he repeatedly asked her how old she was. Underwood even asked to see her driver’s license
                                                9


to confirm her age, but B.F. told him that she had lost it because she had gotten into trouble.

B.F. testified that she does not think that Underwood believed her when she said she was

eighteen. She testified that Underwood asked her co-workers at the fair how old she was

because he did not believe her. She knew that one co-worker responded that “she’d rather just

stay out of it[,]” while others told Underwood that B.F. was not eighteen years old and was lying

to him about her age.

       {¶23} B.F. testified that she went to Underwood’s home in Cuyahoga County after

working at the fair and that she spent the night, although the two did not engage in sexual

relations at that time. On the evening of the events giving rise to the charge, B.F. drank some

alcohol at home before Underwood picked her up. Underwood drove her to his home where they

drank several shots of alcohol. B.F. was intoxicated when Underwood asked if he could take

pictures of her in the nude. The two engaged in sexual intercourse for the first time and

Underwood filmed the act with his cell phone. B.F. testified that Underwood did not ask about

her age before filming her. Underwood then started to drive B.F. home because she told him that

she had to be somewhere the next morning. B.F. did not tell Underwood that she had to go to

school, where she was in the ninth grade.

       {¶24} B.F. testified that she did not remember the traffic stop of Underwood’s vehicle

because she was “passed out” in the front seat. She remembered, however, telling the deputy

who woke her that she had told Underwood that she was seventeen years old and about to turn

eighteen. She testified that she did not know why she told the deputy that and that she was very

drunk at the time. B.F. testified that the deputy questioned her repeatedly regarding her age

because he did not believe her. She admitted that she lied to the deputy about her age because

she did not want Underwood to get in trouble.
                                                10


         {¶25} B.F. testified that Underwood met her mother two or three times but she did not

remember that the two of them talked at all. She testified that she did not tell her mother that she

was dating a thirty-two-year old man.

         {¶26} Deputy Paul Schismenos of the Medina County Sheriff’s office testified that he

stopped Underwood’s vehicle for a traffic violation. When he reached the vehicle, he detected a

strong odor of alcohol and saw a female passenger slumped over in the front seat. Now

suspecting that the driver was intoxicated, the deputy asked Underwood to exit the vehicle so he

could conduct a sobriety test. After patting Underwood down, the deputy placed him in his

cruiser and returned to Underwood’s car to speak to the female passenger.

         {¶27} Deputy Schismenos testified that B.F. gave him her name and true date of birth,

but told him that she was eighteen years old. She later told him that she was fifteen years old.

Based on her date of birth, B.F. would have been fourteen years old at the time. The deputy

testified that B.F. told him that she had sent nude pictures of herself to Underwood and that the

two engaged in vaginal and oral intercourse that evening. After obtaining Underwood’s consent

to search his vehicle, the deputy seized a cell phone found inside. Underwood later consented to

the deputy’s search of data stored on the phone and actually told the deputy how to access the

data.

         {¶28} Deputy Schismenos testified that he told Underwood that B.F. told the deputy that

she was fifteen years old and that she and Underwood had had sex that night. After adamantly

denying engaging in sexual intercourse with B.F., Underwood eventually admitted it. Moreover,

after repeatedly saying that B.F. was eighteen years old, Underwood admitted on at least five

occasions that he knew that B.F. was seventeen and that she would be eighteen in a couple of

weeks.     The State played an audio recording of statements made by Underwood during
                                               11


questioning in the deputy’s cruiser. Underwood can be heard on the recording saying that he

“knew” that B.F. was going to be eighteen years old in a couple of weeks.

       {¶29} Reviewing the evidence in a light most favorable to the State, this Court

concludes that any rational trier of fact could have found the essential elements of the charge of

illegal use of a minor in nudity-oriented material or performance were proved beyond a

reasonable doubt. See Jenks at paragraph two of the syllabus. Underwood conceded that the

State proved all the elements of the offense except for the element of recklessness. The State

presented testimony of the minor, B.F., who admitted that she told the deputy that she had told

Underwood that she was not yet eighteen years old.            Deputy Schismenos testified that

Underwood, after initially lying about the entire situation, told him multiple times that he knew

that B.F. was not yet eighteen years old.       The State presented evidence that Underwood

repeatedly attempted to verify B.F.’s true age because he did not believe that she was eighteen,

and that others who knew B.F. told him that she was lying about her age. There was evidence

that Underwood proceeded to take nude photographs and sexually explicit videos of B.F.

notwithstanding assertions by others and his own admitted knowledge that she was not yet

eighteen years old. Accordingly, there was sufficient evidence to establish that Underwood

recklessly, with heedless indifference to an admittedly known risk regarding B.F.’s minority,

possessed material showing the minor in a state of nudity.

Manifest weight of the evidence

       {¶30} B.F.’s mother, Misty Saunders, testified for the defense. She testified that her

daughter was fifteen years old at the time of trial. She testified that B.F. was living with the

child’s father’s adult friends during the summer and helping them sell merchandise at county

fairs. One of the adult friends, Tony, told Ms. Saunders that B.F. had met Underwood while
                                               12


working at a fair and that Underwood was nice. Ms. Saunders testified that she was not aware

that her daughter was dating or spending the night with Underwood.

       {¶31} Ms. Saunders testified that she met Underwood twice. On the first occasion,

Underwood stopped by her house looking for B.F. Ms. Saunders told him that B.F. was not

home but that she would tell her that Underwood had come to see her. Underwood then left.

She testified that she did not pay any attention to Underwood’s age because she did not know

that he was dating her daughter. On the second occasion, Underwood arrived at Ms. Saunders’

home and asked if he could take B.F. to see a movie and she agreed. Ms. Saunders testified that

B.F.’s age was never raised in either brief conversation she had with Underwood. She testified

that she did not believe it was an important issue because she believed that her daughter and

Underwood were just friends and not having a sexual relationship. Ms. Saunders testified that

she did not learn Underwood’s age until she picked up her intoxicated daughter from the police

station on the night of the incident. She testified that she was surprised to learn that he was

thirty-two because she thought he was in his twenties. Finally, Ms. Saunders testified that

Underwood never asked her how old B.F. was, that she never gave him the impression that B.F.

was eighteen, and that she never gave Underwood permission to have sexual relations with her

daughter.

       {¶32} This Court will not overturn the trial court’s verdict on a manifest weight of the

evidence challenge only because the trier of fact chose to believe certain witness’ testimony over

the testimony of others. State v. Crowe, 9th Dist. No. 04CA0098-M, 2005-Ohio-4082, at ¶22.

       {¶33} A thorough review of the record indicates that this is not the exceptional case,

where the evidence weighs heavily in favor of Underwood. The weight of the evidence supports

the conclusions that Underwood suspected that B.F. was not yet eighteen years old, that he
                                                13


attempted to verify her age of majority and could not, that others told him that B.F. was lying

about having attained the age of eighteen, and that he admitted that he “knew” that B.F. would

not turn eighteen for another couple of weeks. The weight of the evidence further supports the

conclusion that Underwood nevertheless, with heedless disregard of the known risk of her

minority, took pictures and videos of B.F. in a state of nudity and possessed them on his cell

phone. Accordingly, his conviction for illegal use of a minor in nudity-oriented material or

performance is not against the manifest weight of the evidence.              Underwood’s second

assignment of error is overruled.

                                                III.

       {¶34} Underwood’s assignments of error are overruled. The judgment of the Medina

County Court of Common Pleas is affirmed.

                                                                               Judgment affirmed.




       There were reasonable grounds for this appeal.

       We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Medina, State of Ohio, to carry this judgment into execution. A certified copy

of this journal entry shall constitute the mandate, pursuant to App.R. 27.

       Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(E). The Clerk of the Court of Appeals is

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.
                                       14


      Costs taxed to Appellant.




                                            DONNA J. CARR
                                            FOR THE COURT



BELFANCE, P. J.
MOORE, J.
CONCUR

APPEARANCES:

ANDREW M. KORDUBA, Attorney at Law, for Appellant.

DEAN HOLMAN, Prosecuting Attorney, and RUSSELL A. HOPKINS, Assistant Prosecuting
Attorney, for Appellee.
