      [Cite as State v. Hurst, 2012-Ohio-2465.]


                        IN THE COURT OF APPEALS OF OHIO
                           FOURTH APPELLATE DISTRICT
                              WASHINGTON COUNTY

STATE OF OHIO,                                 :
                                               :
      Plaintiff-Appellee,                      : Case No. 10CA33
                                               :
      vs.                                      : Released: May 29, 2012
                                               :
MICHAEL HURST,                                 : DECISION AND JUDGMENT
                                               : ENTRY
      Defendant-Appellant.                     :
                                         APPEARANCES:

John A. Bay, Bay Law Office, LLC, Columbus, Ohio, for Appellant.

James E. Schneider, Washington County Prosecutor, and Alison L. Cauthorn,
Washington County Assistant Prosecutor, Marietta, Ohio, for Appellee.


McFarland, J.:

      {¶1} Appellant Michael Hurst was indicted for 24 offenses, consisting of

tampering with evidence, intimidation, and multiple counts of illegal use of a

minor in a nudity-oriented material or performance. A jury convicted Appellant of

all counts except intimidation. The trial court sentenced Appellant to an aggregate

prison term of 26.5 years, running some of the counts concurrent to one another,

and others consecutively. Appellant raises two assignments of error, arguing 1) the

trial court erred by permitting the jury to view photographs of young girls in

bathing suits not related to the charged offenses, and 2) the trial court abused its

discretion when it sentenced Appellant to a prison term of 26.5 years. Having
Washington App. No. 10CA33                                                           2


reviewed the record, we find the trial court did not abuse its discretion in admitting

the photographs or in sentencing Appellant. Accordingly, we overrule both of

Appellant’s assignments of error, affirming the trial court’s judgment.

                                       FACTS

      {¶2} In 2009, Appellant lived with his child’s mother, Jennifer McCloskey

(“McCloskey”). McCloskey was using Appellant’s computer when she inserted a

USB flash drive (“flash drive”) and browsed its contents. She saw files containing

pictures of her younger sister, another young female, and child pornography.

      {¶3} McCloskey gave the flash drive to the Marietta Police Department.

Law enforcement executed a search warrant of Appellant’s home, seizing his

laptop computer, another flash drive, and his cell phone. Special Agent Brandon

Hoyt (“Hoyt”) of the Ohio Bureau of Criminal Identification and Investigation

conducted a forensic examination of the devices and confirmed the presence of

child pornography.

      {¶4} Hoyt’s examination of the devices provided crucial information. On

the subject flash drive, there was a folder entitled “SYSTEM RESET DO NOT

TOUCH.” This was not a folder that came installed on the flash drive, nor was it

created by another program; it was manually created by a person. The folder

contained four subfolders entitled “FUCKED,” HOTTT,” “MD,” and “PORN.”
Washington App. No. 10CA33                                                              3


These subfolders were also manually created. The PORN subfolder contained the

child pornography.

      {¶5} The MD subfolder contained pictures of young females, the majority of

which were of one particular female. The state proffered three photographs of this

female, clad in a bikini, to establish a link between Appellant and the flash drive’s

contents. This link, once established, would not only tie Appellant to the flash

drive’s contents and the child pornography, but it would also rebut his defense that

he had no knowledge of the flash drive or its contents.

      {¶6} M.D., a 17-year-old female, testified the three subject photos were of

her, though she was 15 when she took them. M.D. had posted the pictures on her

MySpace account. The privacy settings on her account prevent anyone who was

not on her friends list from viewing her photos. M.D. testified she had met

Appellant on MySpace and he was on her friends list, giving Appellant access to

her pictures.

      {¶7} In addition to this testimony, Hoyt was able to link Appellant to the

flash drive’s contents. Hoyt created a timeline, based upon his forensic

investigation of the laptop, flash drive, and cell phone. On February 5th Appellant

had photographed himself with his cell phone and downloaded the self-portraits to

his laptop computer. Within minutes, the computer created LNK (“link”) files

associated with files on the flash drive. Link files are created when a user
Washington App. No. 10CA33                                                                4


manually accesses a file (as opposed to a software program accessing the file), and

they permit rapid access, or a link, to recently viewed files. The fact that link files

pertaining to the flash drive’s contents were created meant a person was manually

accessing the files on the flash drive.

      {¶8} In close proximity to the creation of the link files, the person using the

laptop began editing the photos Appellant had just taken of himself with his cell

phone. The user also edited a photo of M.D. and saved it to the MD subfolder on

the flash drive. Additionally, photos of M.D. on the flash drive were accessed at

10:13 p.m., while one of the pornographic videos finished downloading on the

laptop at 10:25 p.m., which the user transferred to the flash drive at 10:30 p.m.

      {¶9} Hoyt testified while there was no absolute way to know who was using

a computer at a given time, all of this information was a strong indicator Appellant

was the one who was using the computer and had downloaded the child

pornography and transferred it to the flash drive. With additional evidence, the

jury convicted Appellant of every charged count, save the intimidation charge.

      {¶10} At sentencing, the state did not argue for the maximum sentence and

acquiesced to the court imposing concurrent sentences for multiple counts

committed on the same day, but did request a consecutive sentence for the

tampering with evidence charge. The trial court then listened to Appellant and his

counsel. Appellant argued for concurrent sentences and presented evidence of his
Washington App. No. 10CA33                                                             5


prior military service and the relative minor nature of his criminal history. The

court made findings regarding Appellant’s likelihood to recidivate, the seriousness

of the crimes, and its consideration of the purposes and principles of sentencing.

The trial court sentenced Appellant to an aggregate prison term of 26.5 years,

which he now appeals.

                             ASSIGNMENTS OF ERROR

      I.     The trial court committed prejudicial error and denied [Appellant] due

             process of law by permitting the jury to view photographs of young

             girls in bathing suits not related to the charged offenses.

      II.    The trial court abused its discretion when it sentenced [Appellant] to a

             cumulative prison term of 26.5 years.

                  I. Admission of Non-pornographic Photographs

      {¶11} In his first assignment of error, Appellant argues the trial court erred

when it permitted the jury to view nearly a half dozen photographs, including

several of M.D., a bikini-clad 15-year-old, because they were prejudicial and

unrelated to the charged offenses. We disagree.

                               A. Standard of Review

      {¶12} “The admission of evidence is within the sound discretion of the trial

court.” State v. Knauff, 4th Dist. No. 10CA900, 2011-Ohio-2725, at ¶ 22, citing

State v. Sage (1987), 31 Ohio St.3d 173, 510 N.E.2d 343, at paragraph two of the
Washington App. No. 10CA33                                                             6


syllabus. “Absent an abuse of that discretion, an appellate court will not disturb a

trial court’s ruling on the admissibility of evidence.” State v. Blevins, 4th Dist. No.

10CA3353, 2011-Ohio-3367, at ¶ 31, citing State v. Martin (1985), 19 Ohio St.3d

122, 129, 483 N.E.2d 1157 (per curiam). “‘The term “abuse of discretion”

connotes more than an error of law or judgment; it implies that the court’s attitude

is unreasonable, arbitrary or unconscionable.’” (Citations omitted.) Blakemore v.

Blakemore (1983), 5 Ohio St.3d 217, 219, 450 N.E.2d 1140, quoting State v.

Adams (1980), 62 Ohio St.2d 151, 157, 404 N.E.2d 144. “Under this highly

deferential standard of review, we may not simply substitute our judgment for that

of the trial court.” Woody v. Woody, 4th Dist. No. 09CA34, 2010-Ohio-6049, at

¶35, citing In re Jane Doe I (1991), 57 Ohio St.3d 135, 137-138, 566 N.E.2d 1181.

“Rather, we are limited to determining whether considering the totality of the

circumstances, the trial court acted unreasonably, arbitrarily or unconscionably.”

Id., citing Briganti v. Briganti (1984), 9 Ohio St.3d 220, 222, 459 N.E.2d 896,

citing Blakemore, 5 Ohio St.3d at 218-220.

                                  B. Legal Analysis

      {¶13} “Generally, extrinsic acts may not be used to suggest that the accused

has the propensity to act in a certain manner.” State v. Crotts, 104 Ohio St.3d 432,

2004-Ohio-6550, 820 N.E.2d 302, at ¶ 18, citing Evid.R. 404(B) and State v. Smith

(1990), 49 Ohio St.3d 137, 140, 551 N.E.2d 190. “However, there are exceptions.”
Washington App. No. 10CA33                                                             7


Id. “Evidence of other crimes, wrongs, or acts is not admissible to prove the

character of a person in order to show action in conformity therewith. It may,

however, be admissible for other purposes, such as * * * knowledge, identity, or

absence of mistake or accident.” Evid.R. 404(B).

      {¶14} Furthermore, Evid.R. 401 provides “‘Relevant evidence’ means

evidence having any tendency to make the existence of any fact that is of

consequence to the determination of the action more probable or less probable than

it would be without the evidence.” “Although relevant, evidence is not admissible

if its probative value is substantially outweighed by the danger of unfair prejudice

* * *.” Evid.R. 403(A). “Exclusion on the basis of unfair prejudice involves more

than a balance of mere prejudice. If unfair prejudice simply meant prejudice,

anything adverse to a litigant’s case would be excludable under Rule 403.

Emphasis must be placed on the word ‘unfair.’ Unfair prejudice is that quality of

evidence which might result in an improper basis for a jury decision.

Consequently, if the evidence arouses the jury’s emotional sympathies, evokes a

sense of horror, or appeals to an instinct to punish, the evidence may be unfairly

prejudicial.” (Internal quotation marks omitted.) Crotts at ¶ 24, quoting Oberlin v.

Akron Gen. Med. Ctr. (2001), 91 Ohio St.3d 169, 172, 743 N.E.2d 890, quoting

Weissenberger’s Ohio Evidence (2000) 85-87, Section 403.3.
Washington App. No. 10CA33                                                              8


      {¶15} Here, the photos were properly admitted under Evid.R. 404(B) to

establish identity and knowledge. The photos were of M.D. M.D. testified she had

spoken with Appellant through MySpace and added him to her friends list, giving

him access to those photos of her. This linked Appellant to the photos of M.D. on

the flash drive, in the “MD” subfolder.

      {¶16} Logically, having submitted evidence that linked Appellant to the

creation and contents of the MD subfolder, the jury could infer Appellant also

created the other subfolders, including the PORN subfolder that housed the child

pornography, and he knew of the subfolders’ contents. Such an inference would

identify Appellant as the person who transferred the child pornography to the flash

drive, and incidentally establish his knowledge of having done so. Thus, the trial

court was warranted in admitting the subject photos into evidence under Evid.R.

404(B) and it did not abuse its discretion in doing so.

      {¶17} Likewise, the photos are relevant for the same reasons. The photos

help establish critical links between Appellant, the flash drive, and the subfolders.

Appellant’s objection at trial was the photos were prejudicial and he was not

charged with possession of those pictures (they are not pornographic). On appeal,

Appellant argues the photos portrayed him as “a deviant person interested in

photographs of local female children,” which damaged his credibility and

persuaded the jury to convict him.
Washington App. No. 10CA33                                                          9


         {¶18} While Appellant claimed the photos were prejudicial, he has not

demonstrated unfair prejudice outweighs the photos probative value. In a slightly

different context concerning autopsy photos, we have held “[t]he relevant inquiry

however, is whether that prejudice is outweighed by the photograph’s probative

value.” State v. Bennett, 4th Dist. No. 05CA2997, 2006-Ohio-2757, at ¶ 45, citing

State v. Skatzes, 104 Ohio St.3d 195, 819 N.E.2d 215, 2004-Ohio-6391, at ¶ 116;

State v. Maurer (1984), 15 Ohio St.3d 239, 264, 473 N.E.2d 768. Indeed, the text

of Evid.R. 403(A) focuses not on whether prejudice exists at all, but rather dictates

the court balance the danger of unfair prejudice against the evidence’s probative

value.

         {¶19} Other courts have reached varying conclusions when reviewing the

danger of unfair prejudice in admitting particular photographs. See State v.

Trimble, 122 Ohio St.3d 297, 2009-Ohio-2961, 911 N.E.2d 242, at ¶ 134

(affirming the admission of admittedly gruesome crime scene photographs, holding

they were relevant on issues of intent and showed the manner and circumstances

surrounding the deaths); State v. Barnett, 12th Dist. No. CA2008-03-069, 2009-

Ohio-2196, at ¶ 42-48 (holding the admission of a photograph of the defendant

holding a TEC-9, which could be converted to an automatic weapon, was relevant

and probative to the automatic weapon specification and was not unfairly

prejudicial); State v. Stewart, 10th Dist. No. 08AP-33, 2009-Ohio-1547 (holding
Washington App. No. 10CA33                                                           10


the admission of a photograph, wherein the defendant was possibly looking down

an alleged rape victim’s dress, was not unfairly prejudicial when used to impeach a

witness’ statement the defendant had no sexual interest in the victim). But,

compare, State v. Wild, 2d Dist. No. 2009 CA 83, 2010-Ohio-4751, at ¶ 34-39

(holding the admission of photos containing uncharged child pornography, even

though they may tend to show motive, intent, and identity, were unfairly

prejudicial and inflammatory); State v. Burkhammer (Mar. 21, 1996), 10th Dist.

No. 95APA10-1356 (though not dealing with photographs, the court stated, “to

some jurors acknowledging that one is sexually attracted to children is the same as

[labeling] oneself a ‘pervert.’ To such jurors, an acknowledgment of sexual

attraction to children could be tantamount to an admission of guilt, no matter what

the other evidence might indicate. For such jurors, the probative value is clearly

outweighed by unfair prejudice.”).

      {¶20} Likewise, admission of the subject photographs is not a foregone

conclusion. On the one hand, admitting evidence that Appellant possessed nearly

150 photos of a 15-year-old female, some of which showed her in a bikini, poses a

risk of the jury labeling Appellant a deviant or a pedophile and convicting him on

that basis alone. On the other hand, the photos are probative of Appellant’s

knowledge of the flash drive’s contents and probative of the identity of the person
Washington App. No. 10CA33                                                           11


who was operating the computer when the pornography was transferred to the flash

drive.

         {¶21} Given these competing interests, we cannot say the danger of unfair

prejudice substantially outweighed the evidence’s probative value. We find the

trial court did not abuse its discretion and accordingly, we may not disturb its

decision to admit the photographs. Thus, we overrule Appellant’s first assignment

of error.

                                     II. Sentencing

         {¶22} In his second assignment of error, Appellant argues the trial court

abused its discretion when it sentenced him to an aggregate prison term of 26.5

years. Appellant contends the trial court should have run the sentences

concurrently, resulting in an aggregate prison term of only seven years. We

disagree.

                                 A. Standard of Review

         {¶23} When reviewing felony sentences, this Court follows the two-step

approach the Supreme Court of Ohio outlined in State v. Kalish, 120 Ohio St.3d

23, 2008-Ohio-4912, 896 N.E.2d 124, at ¶ 4. See State v. Welch, 4th Dist. No.

08CA29, 2009-Ohio-2655, at ¶ 6. “First, [we] must examine the sentencing

court’s compliance with all applicable rules and statutes in imposing the sentence

to determine whether the sentence is clearly and convincingly contrary to law. If
Washington App. No. 10CA33                                                               12


this first prong is satisfied, [that is, if the sentence complies with the law,] the trial

court’s decision shall be reviewed under an abuse-of-discretion standard.” Kalish

at ¶ 4. “As to the first step, the Kalish court did not clearly specify what ‘pertinent

laws’ we are to consider to ensure that the sentence ‘clearly and convincingly’

adheres to Ohio law. The only specific guideline is that the sentence must be

within the statutory range * * *.” State v. Ross, 4th Dist. No. 08CA872, 2009-

Ohio-877, at ¶ 10.

       {¶24} “[T]rial courts have full discretion to impose sentences within the

statutory range and determine whether a sentence satisfies the overriding purposes

of Ohio’s sentencing statutes.” Welch at ¶ 11. “‘[I]n order for there to be an abuse

of discretion, the trial court’s decision must be “* * * so palpably and grossly

violative of fact or logic that it evidences not the exercise of will, but perversity of

will; not the exercise of judgment, but defiance of judgment; and not the exercise

of reason, but, instead, passion or bias.’” Welch at ¶ 12, quoting Nakoff v.

Fairview Gen. Hosp. (1996), 75 Ohio St.3d 254, 256, 662 N.E.2d 1.

                                   B. Legal Analysis

       {¶25} Here, Appellant’s sentences for the various counts were within the

statutory range:

       Count 1:             Tampering with evidence, R.C. 2921.12(A)(2), a third

                            degree felony
Washington App. No. 10CA33                                                       13


                         Range: 1-5 years Sentence: 4 years

      Counts 3-10:       Illegal use of a minor in nudity oriented material or

                         performance, R.C. 2907.323(A)(1), a second degree

                         felony

                         Range: 2-8 years Sentence: 7 years each count

      Count 11:          Illegal use of a minor in nudity oriented material or

                         performance, R.C. 2907.323(A)(1), a second degree

                         felony

                         Range: 2-8 years Sentence: 7 years

      Counts 12,13:      Illegal use of a minor in nudity oriented material or

                         performance, R.C. 2907.323(A)(1), a second degree

                         felony

                         Range: 2-8 years Sentence: 7 years each count

      Counts 14-21:      Illegal use of a minor in nudity oriented material or

                         performance, R.C. 2907.323(A)(3), a fifth degree felony

                         Range: 6-12 months        Sentence: 6 months each count

      Count 22:          Illegal use of a minor in nudity oriented material or

                         performance, R.C. 2907.323(A)(3), a fifth degree felony

                         Range: 6-12 months        Sentence: 6 months
Washington App. No. 10CA33                                                            14


      Counts 23-24:       Illegal use of a minor in nudity oriented material or

                          performance, R.C. 2907.323(A)(3), a fifth degree felony

                          Range: 6-12 months         Sentence: 6 months each count

      {¶26} Appellant does not argue, nor do we find, his sentence is clearly and

convincingly contrary to Ohio law. As such, Appellant’s sentence satisfies the first

prong of Kalish and we review his sentence for an abuse of discretion.

      {¶27} Appellant’s argument why he should be resentenced is thus: “Given

[Appellant’s] relatively minor criminal record, his [14] years of military service,

and his devotion to his daughters and family, the 26.5-year prison sentence

imposed by the trial court was an abuse of discretion.” (Appellant’s Br. at 8.)

However, we may not substitute our judgment for that of the trial court. The trial

court considered the appropriate statutory factors before sentencing Appellant and

did not abuse its discretion when it sentenced Appellant.

      {¶28} In State v. Foster, 109 Ohio St.3d 1, 2006-Ohio-856, 845 N.E.2d 470,

the Supreme Court of Ohio excised portion of the sentencing statutes that required

judicial fact-finding. “[T]rial courts now ‘have full discretion to impose a prison

sentence within the statutory range and are no longer required to make findings or

give their reasons for imposing maximum, consecutive, or more than the minimum

sentences.’” State v. Adams, 4th Dist. Nos. 04CA2959, 05CA2986, 2009-Ohio-

6491, at ¶ 90, quoting Foster at paragraph seven of the syllabus. “However, they
Washington App. No. 10CA33                                                          15


must still consider R.C. 2929.11 and R.C. 2929.12 before imposing a sentence.”

Adams at ¶ 90, citing Kalish at ¶ 13. Still, we are mindful “this Court’s function is

not to evaluate the sentence and ask if we would have imposed a similar sentence,

but, rather, to determine whether the trial court considered the statutory mitigating

factors.” State v. Phillis, 4th Dist. No. 08CA13, 2008-Ohio-6748, at ¶ 15.

      {¶29} R.C. 2929.11(A) provides, “[t]he overriding purposes of felony

sentencing are to protect the public from future crime by the offender and others

and to punish the offender.”1 R.C. 2929.12 requires the trial court consider the

seriousness of the crime and the likelihood the offender will recidivate.

      {¶30} Here, the trial court properly considered the purposes of sentencing

under R.C. 2929.11 and the seriousness of the offenses and Appellant’s likelihood

to recidivate under R.C. 2929.12. (Tr. at 1366.) Specifically, the trial court noted

Appellant had a past criminal record and committed the offenses while he was on

community control, making him not amenable to community control and more

likely to recidivate. (Sentencing Entry at 3.) There were no factors present

making Appellant less likely to recidivate. (Id.) There were no factors present

making Appellant’s conduct more or less serious that conduct normally

constituting such crimes. (Id.) The court also found a prison term was reasonably

calculated to achieve the purposes and principles of sentencing, and noted it had

      1
          Former version of R.C. 2929.11.
Washington App. No. 10CA33                                                           16


“considered the need for incapacitating the offender and deterring the offender and

others from future crime, and for rehabilitating the offender.” (Id. at 3-4.)

      {¶31} Moreover, the trial court also heard Appellant and his counsel on the

issue of mitigation. Thus, Appellant does not bemoan the trial court’s failure to

consider mitigating factors, but rather he bemoans the weight the trial court

assigned to them. Such a claim has no merit.

      {¶32} As Appellant’s sentence was not contrary to law and the trial court

considered the appropriate statutory factors, we find the trial court did not abuse its

discretion in sentencing Appellant. Accordingly, we overrule Appellant’s second

assignment of error.

                                                         JUDGMENT AFFIRMED.

Harsha, J., concurring:

      {¶33} I concur in judgment only on the second assignment of error because

¶23 of the opinion states Kalish, supra, does not give specific guidance concerning

what “pertinent laws” we are to consider. The opinion concludes “The only

specific guideline is that the sentence must be within the statutory range * * *.”

However, Kalish makes it clear that in determining whether the court’s sentence is

contrary to law, we must also make sure the court considered the purpose and

principles of R.C. 2929.11, the factors listed in R.C. 2929.12, and whether the

court properly applied postrelease control. Kalish at ¶18.
Washington App. No. 10CA33                                                          17


                                  JUDGMENT ENTRY

      It is ordered that the JUDGMENT BE AFFIRMED and that the Appellee
recover of 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
Washington County Common Pleas Court to carry this judgment into execution.

       IF A STAY OF EXECUTION OF SENTENCE AND RELEASE UPON
BAIL HAS BEEN PREVIOUSLY GRANTED BY THE TRIAL COURT OR
THIS COURT, it is temporarily continued for a period not to exceed sixty days
upon the bail previously posted. The purpose of a continued stay is to allow
Appellant to file with the Supreme Court of Ohio an application for a stay during
the pendency of proceedings in that court. If a stay is continued by this entry, it
will terminate at the earlier of the expiration of the sixty day period, or the failure
of the Appellant to file a notice of appeal with the Supreme Court of Ohio in the
forty-five day appeal period pursuant to Rule II, Sec. 2 of the Rules of Practice of
the Supreme Court of Ohio. Additionally, if the Supreme Court of Ohio dismisses
the appeal prior to expiration of sixty days, the stay will terminate as of the date of
such dismissal.

       A certified copy of this entry shall constitute the mandate pursuant to Rule
27 of the Rules of Appellate Procedure.
       Exceptions.

      Kline, J.: Concurs in Judgment and Opinion.
      Harsha, J.: Concurs in Judgment and Opinion as to Assignment of Error I
      and Concurs in Judgment Only with Opinion as to Assignment of Error II.

                                 For the Court,

                                 BY: _________________________
                                     Matthew W. McFarland, Judge

                               NOTICE TO COUNSEL
      Pursuant to Local Rule No. 14, this document constitutes a final
judgment entry and the time period for further appeal commences from the
date of filing with the clerk.
