[Cite as State v. Montalvo, 2018-Ohio-3142.]


                                       COURT OF APPEALS
                                      KNOX COUNTY, OHIO
                                   FIFTH APPELLATE DISTRICT



STATE OF OHIO                                     JUDGES:
                                                  Hon. John W. Wise, P. J.
        Plaintiff-Appellee                        Hon. W. Scott Gwin, J.
                                                  Hon. Patricia A. Delaney, J.
-vs-
                                                  Case No. 17 CA 000019
PEDRO MONTALVO, JR.

        Defendant-Appellant                       OPINION




CHARACTER OF PROCEEDING:                       Criminal Appeal from the Court of Common
                                               Pleas, Case No. 15 CR11 0192


JUDGMENT:                                      Affirmed



DATE OF JUDGMENT ENTRY:                        August 6, 2018



APPEARANCES:

For Plaintiff-Appellee                         For Defendant-Appellant

CHARLES T. MCCONVILLE                          JARED C. ROBERTS
PROSECUTING ATTORNEY                           ONDREY & ROBERTS, LLC
117 East High Street, Suite 234                6487 Ridge Road
Mount Vernon, Ohio 43050                       Wadsworth, Ohio 44281
Knox County, Case No. 17 CA 000019                                                          2

Wise, P. J.

       {¶1}   Defendant-Appellant Pedro Montalvo, Jr., appeals his conviction on

eighteen (18) counts of pandering sexually oriented matter involving a minor, following a

jury trial in the Knox County Common Pleas Court.

       {¶2}   Appellee is the State of Ohio.

                           STATEMENT OF THE FACTS AND CASE

       {¶3}   The relevant procedural facts leading to this appeal are as follows.

       {¶4}   The investigation into Appellant Pedro Montalvo began on October 3, 2014,

when Detective Rick Steller was checking law enforcement software which had

downloaded child pornography from a computer in Mount Vernon, Ohio. (T. at 134). Det.

Steller is a member of the Grove City Police Department, assigned to the Franklin County

Internet Crimes Against Children (ICAC) Task Force. (T. at 127-128). The file downloaded

on October 3, 2014, was titled “Sally 4YO to 8yo.rnpg." (T. at 141). Det. Steller testified

at trial that he determined by viewing the file that it contained child pornography. (T. 136).

       {¶5}   Detective Steller determined the Internet Protocol address from which the

file had been downloaded, which was IP 184.57.52.51. (T. at 136). He also determined

based upon a Google search that the IP address was owned by Time Warner Cable. (T.

at 137). Based upon that knowledge, Det. Steller obtained a subpoena from the Franklin

County Municipal Court for the subscriber information related to the IP address. (T. at

136). Time Warner's response indicated that the subscriber for IP 184.57.52.51 was

Pedro Montalvo, located in Mount Vernon. (T. at 138). The response also indicated that

the Pedro Montalvo's address was 308 West Vine Street in Mount Vernon, and that there
Knox County, Case No. 17 CA 000019                                                       3


were two phone numbers associated with Montalvo's account: (740) 358-5861 and (740)

358-0000. (T. at 153-154).

      {¶6}   Mount Vernon Police Det. Sgt. Beth Marti testified that she was contacted

by Det. Bumpus of the ICAC task force, who provided her with information about the initial

investigation. (T. at 157-158). This information included Montalvo's name, address, IP

address, internet service provider, and telephone number. (T. at 158-159). She

investigated the home address and found that Montalvo had a vehicle registered to him

at the address, and that he had been registered to vote there since 2011. (T. at 159-160).

Det. Bumpus also provided Det. Marti with a copy of the downloaded file of child

pornography, which she viewed so that she could testify to its content. (T. at 160). Based

upon that information, Det. Marti obtained a search warrant from the Mount Vernon

Municipal Court. (T.at 161).

      {¶7}   Det. Marti was part of the law enforcement team that executed the warrant,

a team that also included Det. Bumpus and Special Agent Cameron Bryant of Homeland

Security. (T. at 162). When the warrant was executed, there were three people present

at the residence: Robert and Wendy Bowden, and a female named White Dove. (T. at

163). Those persons identified Pedro Montalvo's bedroom, wherein they located two

computers. (T. at 163, 166).

      {¶8}   Det. Marti testified that she informed the resident the officers were there on

a child pornography investigation. (T. at 168). Resident Robert Bowden emphatically

denied looking at child pornography, and· provided the detectives with his cell phone and

laptop computer. These devices were examined and found to contain no child

pornography. (T. at 168).
Knox County, Case No. 17 CA 000019                                                       4


       {¶9}    Detective Marti was the only witness who personally met Pedro Montalvo.

She identified Montalvo based upon viewing his picture on law enforcement databases

and meeting with him at the Knox County Jail. (T. at 169). In the course of that testimony,

Det. Marti stated that Montalvo declined to make a statement. (T. at 169). This is the only

reference to his silence in the record. (See Transcript). No objection was raised to this

testimony. (T. at 169). Det. Marti then proceeded to identify the Defendant in open court.

(T. at 169).

       {¶10} Special Agent Cameron Bryant of Homeland Security Investigations also

participated in the execution of the search warrant at 308 W. Vine Street in Mount Vernon

on November 12, 2014. (T. at 177, 179). His role was to examine the computers for

evidence of child pornography. (T. at 182). When he examined the HP Desktop computer

belonging to Pedro Montalvo, he recovered over 600 images of child pornography, 70 +

digital movies containing child pornography and 197 images or videos that depicted

known victims of child pornography investigations. (T. at 190). There was no argument

that the child pornography files charged in the indictment were found on Appellant's

computer. The State of Ohio and Appellant stipulated to the dates, titles, and the content

of the files containing images of minors engaged in sexual activity. (T. at 194).

       {¶11} As to the computer itself, Agent Bryant testified that the HP desktop

computer was password protected. (T. at 196). The computer also contained a file sharing

program called Frostwire. (T. at 199).

       {¶12} Special Agent Bryant testified that while he never met Pedro Montalvo

during his investigation, he did leave several messages on Montalvo's phone. (T. at 196).

Agent Bryant stated that he received a return call from (740) 358-5861 at 8:42 p.m. on
Knox County, Case No. 17 CA 000019                                                      5


November 17, 2014, while at home. (T. at 197). The caller identified himself as Pedro

Montalvo. Id. He acknowledged receiving Bryant's messages and stated that he learned

that he had been indicted. (T. at 197). He also stated that he was an over-the-road truck

driver and was in Wisconsin. (T. at 198). He admitted to having child pornography on his

home computer and that he used Frostwire and BitTorrent to download child

pornography. (T. at 198-199). He stated he used computer search terms including PTHC

(preteen hard core), PTSC (preteen soft core), 09YO for nine year old, 08YO, 05YO and

0YO. (T. at 199). He further stated that when he used 0YO, he received videos of adult

men engaging in sexual conduct with babies. (T. at 199).

      {¶13} On November 17, 2014, the Knox County Grand Jury indicted Pedro

Montalvo, Jr. on one count of Pandering Sexually Oriented Material Involving a Minor in

violation of R.C. § 2907.322(A)(2), a felony of the second degree. (See Indictment, Case

No. 14CR11-0185). The matter was set for a change of plea on May 19, 2015, but

subsequently reset for trial after a substitution of counsel on May 28, 2015.

      {¶14} The State of Ohio moved to dismiss the case without prejudice on August

26, 2015 and the motion was granted on August 27, 2015.

      {¶15} On November 3, 2015, the Knox County Grand Jury re-indicted Pedro

Montalvo, Jr. in Case No. 15CR11-019. The indictment included 18 counts. Count One

was a charge of Pandering Sexually Oriented Material Involving a Minor in violation of

R.C. §2907.322(A)(2), a felony of the second degree. Counts Two through Eighteen were

all charges of Pandering Sexually Oriented Material Involving a Minor in violation of R.C.

§2907.322(A)(5), felonies of the fourth degree. (See Indictment, Case No. 15CR11-0192).
Knox County, Case No. 17 CA 000019                                                  6


      {¶16} Other than discovery motions and a motion for a bill of particulars, there

were no pre-trial motions filed by Appellant before the case proceeded to trial on

November 1-2, 2016.

      {¶17} On November 2, 2016, following deliberations after the conclusion of all

evidence, the jury found Appellant guilty on all counts.

      {¶18} On December 16, 2016, the trial court sentenced Appellant to serve

seven (7) years of imprisonment on Count One and seventeen (17) months imprisonment

on each count for Counts Two through Eighteen. These sentences were ordered to run

concurrently. (Sent. Entry, Dec. 20, 2016).

      {¶19} Appellant now appeals, raising the following Assignments of Error:

                                 ASSIGNMENTS OF ERROR

      {¶20} “I.   THE    TRIAL    COURT       ERRED   AND   VIOLATED     APPELLANT

MONTALVO'S CONSTITUTIONAL RIGHT TO A COMPLETE, MEANINGFUL DEFENSE

WHEREIN THE TRIAL COURT REFUSED TO ADMIT EVIDENCE THAT MR.

MONTALVO'S ROOMMATE HAD RECEIVED CHILD PORNOGRAPHIC MATERIALS.

      {¶21} “II. THE TRIAL COURT IMPERMISSIBLY ALLOWED TESTIMONY

REGARDING A PURPORTED TELEPHONE CONVERSATION WITH APPELLANT

MONTALVO WHEREIN: (A) THE INTRODUCTION OF THIS TESTIMONY WAS A

CLEAR VIOLATION OF THE MASSIAH RULE RESULTING IN A VIOLATION OF

APPELLANT MONTALVO'S CONSTITUTIONAL RIGHT TO COUNSEL; (B) THE

PURPORTED TELEPHONE CALL LACKED THE NECESSARY INDICIA OF

RELIABILITY REQUIRED FOR THE INTRODUCTION OF THIS EVIDENCE AND WAS

INADMISSIBLE HEARSAY.
Knox County, Case No. 17 CA 000019                                                        7


       {¶22} “III. APPELLANT MONTALVO'S CONSTITUTIONAL RIGHT TO REMAIN

SILENT WAS VIOLATED WHEREAS THE PROSECUTION ASKED QUESTIONS

DESIGNED       TO   ELICIT    TESTIMONY           ABOUT   HIS   INVOCATION        OF    HIS

CONSTITUTIONAL RIGHT TO REMAIN SILENT.

       {¶23} “IV. R.C. § 2907.322 IS UNCONSTITUTIONALLY VAGUE AS IT DOES

NOT CONTAIN ANY SCIENTER REQUIREMENT FOR THE DISSEMINATION OF

PORNOGRAPHIC MATERIAL.”

                                             I.

       {¶24} In his first Assignment of Error, Appellant argues the trial court erred in

excluding evidence that Appellant’s roommate had received child pornographic materials.

We disagree.

       {¶25} Appellant herein argues that he should have been allowed to present

testimony by the landlord that she received an envelope which contained a printed

catalogue of child pornography addressed to Appellant’s roommate, Robert Bowden. A

proffer was made that she would have testified that when Mr. Bowden never returned to

the apartment to collect his mail, she opened the envelope and saw the catalogue and its

contents. (T. at 228-233).

       {¶26} Initially, we note the admission or exclusion of relevant evidence rests in the

sound discretion of the trial court. State v. Sage (1987), 31 Ohio St.3d 173, 180, 510

N.E.2d 343. As a general rule, all relevant evidence is admissible. Evid.R. 402; cf. Evid.R.

802. 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. Wilmington

Steel Products, Inc. v. Cleveland Elec. Illum. Co. (1991), 60 Ohio St.3d 120, 122, 573
Knox County, Case No. 17 CA 000019                                                          8


N.E.2d 622, 624. Absent an abuse of discretion resulting in material prejudice to the

defendant, a reviewing court should be reluctant to interfere with a trial court's decision in

this regard. State v. Sage (1987), 31 Ohio St.3d 173, 180.

       {¶27} The trial court refused to allow this line of questioning under the “best

evidence rule”.

              Evid.R. 1002 provides, “To prove the content of a writing, recording, or

       photograph, the original writing, recording, or photograph is required, except as

       otherwise provided in these rules or by statute enacted by the General Assembly

       not in conflict with a rule of the Supreme Court of Ohio.” Evid.R. 1004 provides

       exceptions to the requirement of the admission of the original writing, recording or

       photograph.

              The original is not required, and other evidence of the contents of a writing,

       recording, or photograph is admissible if:

              (1) Originals lost or destroyed. All originals are lost or have been destroyed,

       unless the proponent lost or destroyed them in bad faith; or

              ***

       {¶28} Here, the best evidence would have been the envelope with its contents.

However, the landlord testified that she destroyed the envelope and its contents. (T. at

229). Appellant argues that the original was not required in this case because, although

it was destroyed by the landlord, she did not do so in bad faith

       {¶29} Upon review, we find that while the package may have been admissible

under the best evidence rule, the exclusion of same was harmless error. The proffered

testimony was that a plain white envelope, with no return address, containing a catalogue
Knox County, Case No. 17 CA 000019                                                        9


of pornographic videos, which included child pornographic materials, was addressed and

mailed to Robert Bowen, but never received by Robert Bowen, sometime after he moved

out of the apartment in May, 2015. We do find that the exclusion of testimony as to what

an unidentified person may have sent to Appellant’s roommate after the time period of

the investigation and resulting charges in this matter materially prejudiced Appellant. We

do not find, based on the other evidence presented at trial, that the outcome of the

proceedings would have been different.

       {¶30} Appellant’s first assignment of error is overruled.

                                                II.

       {¶31} In his second Assignment of Error, Appellant argues the trial court erred in

allowing into evidence testimony regarding a telephone conversation with Appellant. We

disagree.

       {¶32} Appellant argues herein that the trial court should not have allowed Special

Agent Bryant to testify that he received a return telephone call from Appellant during which

Appellant admitted to the allegations as charged in the indictment. Appellant argues that

introduction of such evidence violated his Sixth Amendment right to counsel as set forth

in Massiah v. United States, 377 U.S. 201, 8 S.Ct. 1199 (1964).

       {¶33} “The Sixth Amendment right to counsel is triggered ‘at or after the time that

judicial proceedings have been initiated * * * whether by way of formal charge, preliminary

hearing, indictment, information, or arraignment.’ ” Fellers v. United States, 540 U.S. 519,

523, 124 S.Ct. 1019 (2004), quoting Brewer v. Williams, 430 U.S. 387, 398, 97 S.Ct. 1232

(1977). The United States Supreme Court has held that “an accused is denied ‘the basic

protections' of the Sixth Amendment ‘when there [is] used against him at his trial evidence
Knox County, Case No. 17 CA 000019                                                          10


of his own incriminating words, which * * * agents * * * deliberately elicited from him after

he had been indicted and in the absence of his counsel.’ ” Fellers at 523, quoting Massiah

v. United States, 377 U.S. 201, 206, 84 S.Ct. 1199 (1964). The United States Supreme

Court has also held that “if police initiate interrogation after a defendant's assertion, at an

arraignment or similar proceeding, of his right to counsel, any waiver of the defendant's

right to counsel for that police-initiated interrogation is invalid.” Michigan v. Jackson, 475

U.S. 625, 636, 106 S.Ct. 1404 (1986).

       {¶34} “[T]he Sixth Amendment right to counsel may be waived by a defendant, so

long as relinquishment of the right is voluntary, knowing, and intelligent.” Montejo v.

Louisiana, 556 U.S. 778, 786, 129 S.Ct. 2079, 2085 (2009). A defendant may waive his

Sixth Amendment right to counsel regardless of whether he is already represented by

counsel, and the decision to waive “need not itself be counseled.” Id. In turn, “[n]othing in

the Sixth Amendment prevents a suspect charged with a crime and represented by

counsel from voluntarily choosing, on his own, to speak with police in the absence of an

attorney.” Michigan v. Harvey, 494 U.S. 344, 352, 110 S.Ct. 1176 (1990). Therefore,

“[a]lthough a defendant may sometimes later regret his decision to speak with police, the

Sixth Amendment does not disable a criminal defendant from exercising his free will.” Id.

at 353.

       {¶35} Here, after a thorough review of the record, we find it is clear that Appellant

initiated the conversation with Special Agent Bryant when he returned the telephone call,

thus indicating Appellant’s statements to Agent Bryant were voluntary and admissible

against him at trial.
Knox County, Case No. 17 CA 000019                                                         11


       {¶36} Appellant, however, argues his purported statements should have been

excluded because he did not explicitly waive his Sixth Amendment right to counsel

knowingly and intelligently before speaking to Agent Bryant on the day in question. In

support of this claim, Appellant argues that the prosecution failed to present evidence that

Agent Bryant gave Appellant any Miranda warnings.

       {¶37} The sole remedy for a Miranda violation is the suppression of the evidence

which was derived from the violation. Bennett v. Passic (C.A.10, 1976), 545 F.2d 1260,

1263; see Miranda, supra, 384 U.S. at 479. A criminal defendant is required to raise a

Miranda violation in a pretrial motion to suppress. State v. Cornely (1978), 56 Ohio St.2d

1, 6. By failing to file a motion to suppress before trial, Appellant waived any Miranda error

relating to the failure to suppress his conversation with Agent Bryant. See State v. Moody

(1978), 55 Ohio St.2d 64, 66; State v. Sibert (1994), 98 Ohio App.3d 412, 429.

       {¶38} Appellant also argues that the telephone call lacked the necessary indicia

of reliability required to be admissible. The admission or exclusion of relevant evidence

rests within the sound discretion of the trial court. State v. Sage (1987), 31 Ohio St.3d

173, 510 N.E.2d 343. Therefore, we will not disturb a trial court's evidentiary ruling unless

we find said ruling to be an abuse of discretion; i.e. unreasonable, arbitrary or

unconscionable and not merely an error of law or judgment. State v. Adams (1980), 62

Ohio St.2d 151, 157, 404 N.E.2d 144.

       {¶39} As a condition precedent to admissibility, Evid.R. 901(A) requires

authentication by “evidence sufficient to support a finding that the matter in question is

what its proponent claims.” This is a low threshold, “requiring only foundational evidence

for the trier of fact to conclude that the evidence is indeed what the proponent claims it to
Knox County, Case No. 17 CA 000019                                                            12

be.” (Citations omitted.) State v. Dawson, 2d Dist. Greene No. 2009–CA–63, 2010–Ohio–

3904, ¶ 13. “The testimony of a witness with knowledge is sufficient authentication.” Id.,

citing Evid.R. 901(B)(1).

       {¶40} Evid.R. 901(B) (6) provides the following as an illustration of authentication

or identification conforming with the requirements of this rule:

              (6) Telephone Conversations. Telephone conversations, by evidence that a

       call was made to the number assigned at the time by the telephone company to a

       particular person or business, if (a) in the case of a person, circumstances,

       including self-identification, show the person answering to be the one called, or (b)

       in the case of a business, the call was made to a place of business and the

       conversation related to business reasonably transacted over the telephone.

       {¶41} “Rule 901(B)(4) contemplates that a caller may be identified by the fact that

the speech could only have been uttered by him, under the circumstances. ‘A letter or a

voice over the telephone may be related to a particular person by the very fact that the

matters set forth in the letter or the telephone conversation were known peculiarly to a

particular person.’ ” Id., quoting 1980 Staff Note, Evid.R. 901.

       {¶42} Courts have also held that “ ‘[t]elephone conversations are admitted where

the identity of the parties is “satisfactorily explained.” ’ ” State v. Carr–Poindexter, 2d Dist.

Montgomery No. 20197, 2005–Ohio–1571, ¶ 24, quoting State v. Williams, 64 Ohio

App.2d 271, 274, 413 N.E.2d 1212 (8th Dist.1979). In Carr–Poindexter, we stressed that

such testimony is properly admitted “ ‘where there is a reasonable showing, through

testimony or other evidence, that the witness placed or received a call as alleged, plus

some indication of the identity of the person spoken to. “There is no fixed identification
Knox County, Case No. 17 CA 000019                                                            13

requirement for all calls.” * * * “Each case has its own set of facts.” ’ ” Id., quoting State v.

Vrona, 47 Ohio App.3d 145, 149, 547 N.E.2d 1189 (9th Dist.1988). These facts may be

established through either direct or circumstantial evidence. Id., citing Williams at 274.

       {¶43} Here, the call received by Agent Bryant was initiated by Appellant. The call

initiated from the number associated with Appellant. (T. at 197). The caller identified

himself as Appellant Pedro Montalvo. Id. The caller acknowledged receiving Agent

Bryant’s messages. Id. The caller also stated that he had learned that he had just been

indicted. Id. Agent Bryant testified that he had left messages on Appellant’s phone and

that Appellant had been indicted earlier that day. (T at 196). Additionally, the caller also

identified himself as being an over-the-road truck driver. (T. at 198). Agent Bryant had

learned during his investigation that Appellant was a truck driver. (T. at 197). The caller

also admitted that he had child pornography on his home computer, and that he used

Frostwire and BitTorrent to download such pornography. (T. at 190, 198). Agent Bryant

testified that Appellant’s computer contained hundreds of files containing child

pornography, and that the Frostwire program was also on Appellant’s computer. (T. at

198-199). Finally, the caller told Agent Bryant what preferred search terms he used to find

the child pornography, and most of the files found on Appellant’s computer contained

those search terms. (T. at 199).

       {¶44} Taking all of the evidence into consideration, we find no error. Specifically,

the threshold test of authentication was met, and the jury could decide the weight to give

the phone call. See State v. Harmon, 2d Dist. Clark No. 2932, 1993 WL 55967, (Mar. 2,

1993) (jury decides “how authentic an item of evidence is, and * * * [gives] it weight

accordingly”); State v. Isley, 9th Dist. Summit No. 17485, 1996 WL 351154, *2 (June 26,
Knox County, Case No. 17 CA 000019                                                          14


1996) (once judge decides “ ‘threshold test of authentication has been met and submits

the evidence to the jury, the jury may reject the authenticity of the evidence’ ”); State v.

Taylor, 2d Dist. Miami No. 2005 CA 44, 2006–Ohio–6813, ¶ 30 (once court decides to

admit evidence, weight to be given is for trier of fact).

       {¶45} As noted above, the threshold for authenticating evidence is low and only

requires “sufficient foundational evidence * * *.” (Citation omitted). State v. Young, 2d Dist.

Montgomery No. 18874, 2002 WL 471846, *2 (Mar. 29, 2002). See also State v. Moore,

2015–Ohio–1327, 30 N.E.3d 988, ¶ 18 (2d Dist.).

       {¶46} For the above reasons, we overrule Appellant's second assignment of error.

                                                 III.

       {¶47} In his third Assignment of Error, Appellant argues that his constitutional right

to remain silent was violated. We disagree.

       {¶48} At trial, during her testimony, Detective Marti stated that she advised

Appellant of his Miranda rights at the Knox County jail and that he subsequently refused

to make a statement. (T. at 169). No objection was made to this testimony.

       {¶49} Although this statement was not objected to in the trial court, Appellant

contends that such amounts to plain error and the trial court's failure to uphold his

constitutional right to remain silent constitutes reversible error.

       {¶50} Although a court will not generally consider alleged errors that were not

brought to the attention of the trial court, Crim.R. 52(b) provides that the court may

consider such errors affecting substantial rights. An alleged error constitutes plain error

only if the error is obvious and, but for the error, the outcome of the trial clearly would
Knox County, Case No. 17 CA 000019                                                         15

have been different. State v. Yarbrough, 95 Ohio St.3d 227, 2002-Ohio-2126, 767 N.E.2d

216, ¶ 108.

       {¶51} Evidence submitted by the State regarding a defendant's exercise of his

right to remain silent during an interrogation violates the Due Process Clause of both the

state and federal constitutions. Doyle v. Ohio (1976), 426 U.S. 610, 618, 96 S.Ct. 2240,

49 L.Ed.2d 91; State v. Leach, 102 Ohio St.3d 135, 807 N.E.2d 335, 2004-Ohio-2147, ¶

18. Nevertheless, the introduction of evidence regarding a defendant's decision to remain

silent does not constitute reversible error if, based on the whole record, the evidence was

harmless beyond any reasonable doubt. State v. Zimmerman (1985), 18 Ohio St.3d 43,

45, 479 N.E.2d 862. The Ohio Supreme Court has held that “[a] single comment by a

police officer as to a suspect's silence without any suggestion that the jury infer guilt from

the silence constitutes harmless error.” State v. Treesh, 90 Ohio St.3d 460, 2001-Ohio-4,

739 N.E.2d 749; State v. Welch, 3d Dist. No. 16-06-02, 2006-Ohio-6684, ¶ 10.

       {¶52} Based on the specific facts before us, including the overwhelming evidence

of Appellant’s guilt of the crimes, we do not find that the outcome of the trial would have

been different but for said error.

       {¶53} Appellant’s third assignment of error is overruled.

                                                 IV.

       {¶54} In his fourth Assignment of Error, Appellant argues R.C. §2907.322 is

unconstitutionally vague. We disagree.

       {¶55} Appellant argues that the statute is unconstitutionally vague because it does

not include a scienter requirement for dissemination of illicit materials.
Knox County, Case No. 17 CA 000019                                                           16


        {¶56} When a statute is challenged under the void-for-vagueness doctrine, “the

court must determine whether the enactment (1) provides sufficient notice of its

proscriptions to facilitate compliance by persons of ordinary intelligence and (2) is specific

enough to prevent official arbitrariness or discrimination in its enforcement.” Norwood v.

Horney, 110 Ohio St.3d 353, 2006–Ohio–3799, ¶ 84, citing Kolender v. Lawson, 461 U.S.

352, 357, 103 S.Ct. 1855 (1983)

        {¶57} Upon review, we find that R.C. §2907.322 contains a “knowledge”

requirement in the first part of the statute, and imposes strict liability for the acts that are

prohibited. Specifically, R.C. §2907.322, as relevant to the indictment in the present case,

states that:

        {¶58} “(A) No person, with knowledge of the character of the material or

performance involved, shall do any of the following:

        {¶59} “(1) Create, record, photograph, film, develop, reproduce, or publish any

material that shows a minor participating or engaging in sexual activity, masturbation, or

bestiality * * *.”

        {¶60} In a prosecution under R.C. §2907.322, the trier of fact may “infer that a

person in the material or performance involved is a minor if the material or performance,

through its title, text, visual representation, or otherwise, represents or depicts the person

as a minor.” R.C. §2907.322(B)(3).

        {¶61} In the instant case, Appellant argues that there is a possibility that a person

could unknowingly share information with other parties through “peer to peer” computer

networks. (Appellant's brief at 24.)
Knox County, Case No. 17 CA 000019                                                         17


       {¶62} R.C. §2907.322 makes clear that “its prohibitions apply to pornography

depicting an actual minor.” State v. Huffman, 165 Ohio App.3d 518, 2006–Ohio–1106, ¶

31 (1st Dist.). It “leaves no discretion for the application and enforcement of the statute,

describing with sufficient particularity what a person must do to commit a violation.” Id.

       {¶63} The Huffman court determined the scienter requirement in R.C. 2907.322,

requiring a defendant to have “knowledge of the character of the material or performance

involved,” eliminated any potential vagueness claim. Id. at ¶ 33. See also State v. Kraft,

1st Dist. No. C–060238, 2007–Ohio–2247, ¶ 44–45, quoting Mishkin v. New York, 383

U.S. 502, 512, 86 S.Ct. 958 (1966) (concluding the scienter requirement in R.C. 2907.322

“requires evidence that the offender knew that the image involved a real minor,” thus

demonstrating that “the focus of the statute is on the ‘calculated purvey[or]’ of child

pornography”).

       {¶64} In State v. Maxwell, 95 Ohio St.3d 254, 2002-Ohio-2121, 767 N.E.2d 242,

the Ohio Supreme Court held that the General Assembly plainly indicated a purpose to

impose strict liability when it explicitly set forth a mental state in one part of a statutory

section defining a criminal offense, but not in another. In Maxwell, a defendant who had

downloaded obscene images involving minors onto his computer argued that although he

knew that the images were obscene and involved minors, he did not know that he was

downloading them from a computer system in another state, which resulted in his

importing the images into Ohio. The court held that based upon the language in the

statute, the knowledge element of R.C. §2907.321(A) applied only to “the character of the

material or performance involved,” and the absence of any knowledge requirement

relating to actual importing of the material evidenced a plain intention to impose strict
Knox County, Case No. 17 CA 000019                                                  18

liability for that act. Id. at ¶30. This interpretation was supported by the General

Assembly's demonstrated history of assuming a “strong stance” against sex-related acts

involving minors. Id.

       {¶65} In State v. Turner, 2nd District, Montgomery No. 22777, 2008-Ohio-6836,

the court examined both R.C. §2907.321 (Pandering Obscenity Involving a Minor) as well

as R.C. §2907.322, the statute involved in the case sub judice. The Turner court, in

looking at the scienter, or mens rea, element required, found that the knowledge

requirement applied to the character of the material involved and that remainder of the

statute imposes strict liability.

       {¶66} Upon review, we find Appellant's argument that R.C. §2907.322 is

unconstitutionally vague lacks merit.

       {¶67} Appellant’s fourth assignment of error is overruled.

       {¶68} For the reasons stated in the foregoing opinion, the judgment of the Court

of Common Pleas, Knox County, Ohio, is affirmed.

By: Wise, P. J.

Gwin, J., and

Delaney, J., concur.



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