[Cite as State v. Milancuk, 2020-Ohio-1607.]

                              COURT OF APPEALS OF OHIO

                             EIGHTH APPELLATE DISTRICT
                                COUNTY OF CUYAHOGA

STATE OF OHIO,                                       :

                 Plaintiff-Appellee,                 :
                                                              No. 108507
                 v.                                  :

DERRICK MILANCUK,                                    :

                 Defendant-Appellant.                :


                               JOURNAL ENTRY AND OPINION

                 JUDGMENT: AFFIRMED
                 RELEASED AND JOURNALIZED: April 23, 2020


         Criminal Appeal from the Cuyahoga County Court of Common Pleas
                             Case No. CR-18-632637-A


                                               Appearances:

                 Michael C. O’Malley, Cuyahoga County Prosecuting
                 Attorney, and Melissa Riley, Assistant Prosecuting
                 Attorney, for appellee.

                 Susan J. Moran, for appellant.


MARY EILEEN KILBANE, J.:

                   Defendant-appellant, Derrick Milancuk (“Milancuk”), appeals his

conviction. Milancuk argues that his counsel was ineffective for failing to file a

motion to suppress and that his conviction was against the manifest weight of the

evidence. For the following reasons, we affirm the trial court.
                                       Facts

              Beginning in December 2017, the Ohio Internet Crimes Against

Children Task Force (“ICAC”) started tracking a computer operating peer-to-peer

software from a single IP address. Peer-to-peer software allows the user to find and

share electronic files within an online network. Milancuk was later identified as the

owner and user of the computer at the relevant times.

              During the course of the investigation, a special investigator met up

with Milancuk online on three separate dates: December 11, 2017; December 25,

2017; and January 19, 2018. On each occasion, Milancuk sent a file that when

downloaded contained child pornography.

              On February 22, 2018, the ICAC task force obtained a search warrant

for Milancuk’s residence that stated that there was probable cause to believe

investigators would find peer-to-peer computer file sharing programs containing

the files shared with the ICAC task force. The warrant also stated there was probable

cause to search the residence for other electronic devices containing child

pornography. On February 23, 2018, the task force entered Milancuk’s home. They

found four files containing child pornography on Milancuk’s desktop computer.

              In addition to Milancuk, two other men lived at the house. One

individual admitted to producing pornography at the residence, and both

individuals admitted to watching pornography at the house.           However, only

Milancuk admitted to having an interest in child pornography and downloading

child pornography files in the past.
                                Procedural History

              On September 12, 2018, Milancuk was indicted on thirteen counts of

pandering sexually oriented material involving a minor purusuant to R.C.

2907.322(A)(2), second-degree felonies, and one count of possessing criminal tools

pursuant to R.C. 2923.23(A), a fifth-degree felony. He pled not guilty on September

26, 2018, and the case proceeded to a bench trial on February 21, 2019.

              Following the presentation of evidence, the defense moved for

judgment of acquittal under Crim.R. 29; the court dismissed counts one, two, and

three but maintained the other counts for judgment.

              On March 1, 2019, Milancuk was found guilty of counts 4 through 11,

count 13, and count 14. Milancuk was found not guilty of count 12. On April 3, 2019,

the court imposed a sentence of ten months as to each count, with all sentences to

run concurrently for a total sentence of ten months. Milancuk was ordered to pay a

$250 fine on count 4 and he received five years of mandatory postrelease control.

Milancuk is also now registered as a Tier II sex offender. This appeal follows.

              Milancuk presents two assignments of error for our review.

                             Assignment of Error No. 1

      The Defendant-Appellant was denied effective assistance of counsel in
      violation of Amendments VI and XIV, United States Constitution; and
      Article I, Section 10, Ohio Constitution for failing to file a motion to
      suppress evidence.
                             Assignment of Error No. 2

      Appellant’s convictions are against the manifest weight of the evidence.

              We will address them in turn.
       Ineffective Assistance of Counsel and a Motion to Suppress

              In Milancuk’s first assignment of error, he argues that he was denied

the effective assistance of counsel because his counsel failed to file a motion to

suppress. We disagree.

              In order to establish a claim of ineffective assistance of counsel, a

defendant must prove (1) his counsel was deficient in some aspect of his

representation, and (2) there is a “reasonable probability” that, were it not for

counsel’s errors, the result of the trial court proceedings would have been different.

State v. Phillips, 8th Dist. Cuyahoga No. 103895, 2016-Ohio-7049, ¶ 10, citing

Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

“Reasonable probability” is such “probability sufficient to undermine confidence in

the outcome.” Strickland, 466 U.S. at 694. An appellant’s failure to prove either

prong of the Strickland two-part test makes it unnecessary for a court to consider

the other prong. State v. Madrigal, 87 Ohio St.3d 378, 389, 2000-Ohio-448, 721

N.E.2d 52, citing Strickland, 466 U.S. at 697.

              “We note that the failure to pursue a motion to suppress in the trial

court does not automatically establish an ineffective assistance of counsel claim on

appeal.” State v. Kinney, 8th Dist. Cuyahoga No. 106952, 2019-Ohio-629, ¶ 11.

      To establish ineffective assistance of counsel for failure to pursue a
      motion to suppress, a defendant must prove that there was a basis to
      suppress the evidence in question and that there was a reasonable
      probability both that a motion to suppress would have been successful
      if pursued and that suppression of the challenged evidence would have
      changed the outcome of the case.
Id., quoting State v. Musleh, 8th Dist. Cuyahoga No. 105305, 2017-Ohio-8166, ¶ 31.

               Milancuk cannot prove that there was a basis to suppress the evidence

and trial counsel is not obligated to pursue a motion to suppress if such a motion

would be futile. Id. “‘Even if some evidence in the record supports a motion to

suppress, counsel is still considered effective if counsel could reasonably have

decided that filing a motion to suppress would have been a futile act.’” State v.

Moon, 8th Dist. Cuyahoga No. 101972, 2015-Ohio-1550, ¶ 28, quoting State v.

Suarez, 12th Dist. Warren No. CA2014-02-035, 2015-Ohio-64, ¶ 13. Therefore, if

established principles of law demonstrate that a motion to suppress would have

been denied, counsel cannot be considered ineffective for failing to pursue such a

motion. State v. Brooks, 11th Dist. Lake No. 2011-L-049, 2013-Ohio-58, ¶ 57.

               In this case, Milancuk argues that the search warrant was predicated

on stale evidence that did not establish probable cause. His arguments are without

merit; the warrant was not based on stale evidence and there was probable cause as

a result.

               The Fourth Amendment to the United States Constitution, as applied

to the states through the Fourteenth Amendment, provides that

       [t]he right of the people to be secure in their persons, houses, papers,
       and effects, against unreasonable searches and seizures, shall not be
       violated, and no warrants shall issue, but upon probable cause,
       supported by oath or affirmation, and particularly describing the place
       to be searched, and the persons or things to be seized.

               Article I, Section 14 of the Ohio Constitution contains a nearly

identical provision. See also R.C. 2933.22(A).
               “A neutral and detached judge or magistrate may issue a search

warrant only upon a finding of probable cause.” State v. Young, 146 Ohio App.3d

245, 254, 765 N.E.2d 938 (11th Dist.2001), citing United States v. Leon, 468 U.S.

897, 914-915, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984). See also Crim.R. 41(C). An

affidavit in support of a search warrant must present timely information and include

facts so closely related to the time of issuing the warrant as to justify a finding of

probable cause at that time — otherwise it is stale. State v. Hollis, 98 Ohio App.3d

549, 554, 649 N.E.2d 11 (11th Dist.1994), citing State v. Jones, 72 Ohio App.3d 522,

526, 595 N.E.2d 485 (6th Dist.1991).

               The question of staleness is not measured solely by counting the days

between the events listed in the affidavit and the application for the warrant. State

v. Yanowitz, 67 Ohio App.2d 141, 144, 426 N.E.2d 190 (8th Dist.1980). Ohio courts

have instead identified a number of factors to consider in determining whether the

information contained in an affidavit is stale, including the character of the crime;

the criminal; the thing to be seized, as in whether it is perishable; the place to be

searched; and whether the affidavit relates to a single isolated incident or ongoing

criminal activity. State v. Prater, 12th Dist. Warren No. CA2001-12-114, 2002-

Ohio-4487, ¶ 13.

               In challenging the probable cause supporting the search warrant,

Milancuk argues that it was unreasonable for the judge to believe that electronic

files, easily disposed of and obviously illegal, would still be in his house at the time

the warrant was issued. We disagree.
              The search warrant was predicated upon three child pornography

files shared from Milancuk’s IP address. The third video was shared on January 19,

2018, and the warrant was not obtained until February 22, 2018. It follows,

according to Milancuk, that a one-month delay — and in terms of the first and

second files shared, a two-month delay — between the files being shared and the

warrant being executed means that it was unlikely the evidence would still be there

and that there was no probable cause for the warrant in the first place. That

argument is inconsistent with our precedent and with rulings from around the

country.

              When confronting these types of offenses, Ohio courts have

recognized that the continuing nature of sexual offenses involving minors often

justifies a finding of probable cause even several months after the conduct occurred.

See State v. VanVoorhis, 3d Dist. Logan No. 8-07-23, 2008-Ohio-3224, ¶ 81; State

v. Rogers, 12th Dist. Butler No. CA2006-03-055, 2007-Ohio-1890, ¶ 43; State v.

Thompson, 110 Ohio Misc.2d 139, 145-146, 745 N.E.2d 1159 (C.P.2000).

              As a result, we have adopted a staleness analysis sensitive to

“technology and to the particular criminal activity at issue.” State v. Willard, 8th

Dist. Cuyahoga No. 99184, 2013-Ohio-3001, ¶ 18, citing United States v. Miller, 450

F.Supp.2d 1321, 1335 (M.D.Fla. 2006). Due to their digital nature, “pornographic

images are not perishable items and may be stored on computers or computer-

related items for long periods of time within the offenders’ home.” Willard at ¶ 21.

That holds true for child pornography as well, and, because of the nature of the
offenses, courts have found that probable cause may still exist months after the

conduct.

                In this case, we only need to reckon with conduct that had occurred

one and two months prior to the warrant being obtained. Accordingly, we find that,

due to the nature of the evidence believed to be in Milancuk’s residence, it was

reasonable for the judge to conclude that there was a fair probability that contraband

or evidence of a crime was present in appellant’s residence at the time the warrant

was issued.

                Based on the foregoing analysis, we find that appellant’s trial

counsel’s failure to pursue a motion to suppress was not ineffective because we find

that there was no basis to suppress the evidence in question. We therefore cannot

find that appellant’s trial counsel was deficient in failing to file a motion to suppress

that would have been futile. See Kinney, 2019-Ohio-629.

                Because appellant has failed to demonstrate that counsel’s

performance was deficient, we need not consider whether there was prejudice.

Madrigal, 87 Ohio St.3d at 389, 721 N.E.2d 52. Milancuk’s first assignment of error

is overruled.

                We turn now to Milancuk’s second assignment of error.

                                   Manifest Weight

                In his second assignment of error, Milancuk argues that his

convictions are against the manifest weight of the evidence. Specifically, he argues

that the state did not, and cannot, prove that it was Milancuk who shared the files
given that the IP address and computer in question could have been accessed by

Milancuk’s roommates. While his arguments are not without some merit, the

weight of the evidence in this case supports his convictions.

               In our manifest weight review of a bench trial verdict, we recognize

that the trial court is serving as the factfinder, and not a jury:

      Accordingly, to warrant reversal from a bench trial under a manifest
      weight of the evidence claim, this 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
      evidence, the trial court clearly lost its way and created such a manifest
      miscarriage of justice that the judgment must be reversed and a new
      trial ordered.

State v. Bell, 8th Dist. Cuyahoga No. 106842, 2019-Ohio-340, ¶ 41, citing State v.

Strickland, 183 Ohio App.3d 602, 2009-Ohio-3906, 918 N.E.2d 170, ¶ 25 (8th Dist.).

See also State v. Kessler, 8th Dist. Cuyahoga No. 93340, 2010-Ohio-2094, ¶ 13.

               A conviction should be reversed as against the manifest weight of the

evidence only in the most “exceptional case in which the evidence weighs heavily

against the conviction.” State v. Thompkins, 78 Ohio St.3d 380, 387, 678 N.E.2d

541 (1997). In contrast to a challenge based on sufficiency of the evidence, a

manifest weight challenge attacks the credibility of the evidence presented and

questions whether the state met its burden of persuasion at trial. State v. Whitsett,

8th Dist. Cuyahoga No. 101182, 2014-Ohio-4933, ¶ 26, citing Thompkins, 78 Ohio

St.3d at 387, 678 N.E.2d 541; State v. Bowden, 8th Dist. Cuyahoga No. 92266, 2009-

Ohio-3598, ¶ 13. We find that this was not one of those “exceptional cases” that

require reversal. The state met its burden here.
               Milancuk admitted to downloading and viewing child pornography in

the past, while neither of his roommates admitted to doing the same. Milancuk’s

computer was also the only electronic device found in the house with the peer-to-

peer software used to send files to the ICAC. Finally, Milancuk admitted that neither

of his roommates used his desktop computer where the child pornography files were

found.

               Based on our review of the entire record in this case, weighing the

strength and credibility of the evidence presented and the inferences to be

reasonably drawn therefrom, we cannot say that the conviction is against the

manifest weight of the evidence.

               Milancuk’s second assignment of error is overruled.

               For the foregoing reasons, we find that Milancuk’s counsel was not

ineffective in not filing a motion to suppress and that his conviction was not against

the manifest weight of the evidence. The judgment of the trial court is affirmed.

      It is ordered that appellee recover from appellant costs herein taxed.

      The court finds there were reasonable grounds for this appeal.

      It is ordered that a special mandate issue out of this court directing the

common pleas court to carry this judgment into execution.            The defendant’s

conviction having been affirmed, any bail pending is terminated. Case remanded to

the trial court for execution of sentence.
      A certified copy of this entry shall constitute the mandate pursuant to Rule 27

of the Rules of Appellate Procedure.



MARY EILEEN KILBANE, JUDGE

EILEEN T. GALLAGHER, A.J., and
ANITA LASTER MAYS, J., CONCUR
