[Cite as State v. Pippin, 2017-Ohio-6970.]



                           IN THE COURT OF APPEALS
                  FIRST APPELLATE DISTRICT OF OHIO
                            HAMILTON COUNTY, OHIO




STATE OF OHIO,                               :    APPEAL NOS. C-160380
                                                               C-160381
      Plaintiff-Appellee,                    :    TRIAL NO. B-1300383

  vs.                                        :
                                                     O P I N I O N.
TONY PIPPIN,                                 :

      Defendant-Appellant.                   :




Criminal Appeals From: Hamilton County Court of Common Pleas

Judgment Appealed From Is: Affirmed

Date of Judgment Entry on Appeal: July 26, 2017



Joseph T. Deters, Hamilton County Prosecuting Attorney, and Philip R. Cummings,
Assistant Prosecuting Attorney, for Plaintiff-Appellee,

Bryan R. Perkins, for Defendant-Appellant.
                  OHIO FIRST DISTRICT COURT OF APPEALS



DETERS, Judge.

       {¶1}   Tony Pippin appeals his convictions for rape and pandering sexually-

oriented matter involving a minor, stemming from the discovery of videos on his cell

phone that showed him raping a 15-year-old girl. We hold that the video evidence

was admissible at trial because it was discovered pursuant to a lawful search warrant.

We also conclude that the court properly denied suppression motions without an

evidentiary hearing on the validity of the warrant. Finally, we hold that the court

properly sentenced Pippin. Therefore, we affirm the trial court’s judgment.


                                         Background


       {¶2}   Police seized Pippin’s cell phone and other evidence from his residence

when they executed a search warrant issued on December 15, 2012. Police had

obtained the warrant during their investigation into multiple rape and burglary

offenses. After Pippin’s phone was seized, it was secured in the property room of the

Delhi Township Police Department.

       {¶3}   On December 18, 2012, Delhi Township Police Detective Adam L. Cox

sought a warrant from a Hamilton County Common Pleas Court judge to authorize

the search of the data contained within Pippin’s phone. Before driving from the

Hamilton County courthouse back to Delhi, Cox delivered the phone to the forensics

unit of the Cincinnati Police Division for extraction of the data.

       {¶4}   Cincinnati Police Officer Scott Radigan, a video and cell phone

forensics analyst, began preparing Pippin’s cell phone for data extraction.        He

removed the back of the phone to determine its model number, and then made

adjustments to the phone settings to allow for the data transfer.




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                  OHIO FIRST DISTRICT COURT OF APPEALS



       {¶5}   After experiencing initial problems getting the data download to start

with his standard equipment, Radigan further examined the phone and opened the

photo gallery as part of his troubleshooting. He was eventually able to get the

extraction process started by using a different digital forensics product.

       {¶6}   Before the extraction was completed, Radigan got a call from Cox, who

told him to stop the extraction that was in progress. Radigan disconnected the

phone from the forensics equipment and pulled the battery out of the phone.

According to Cox, he had been about to fax a copy of the search warrant and affidavit

to Pippin’s attorney when he discovered that the judge had failed to sign the search

warrant.

       {¶7}   Because it was late in the day, Cox believed that the issuing judge was

unavailable, so he resubmitted the warrant to the judge the following morning. The

judge signed and dated it that day (December 19), and marked it “as of” December

18, 2012. Cox called Radigan and told him to go ahead with the data extraction.

       {¶8}   Data from the extraction indicated that the phone was next accessed

on December 20, 2012, the day that the data extraction was completed. A digital disc

containing the extracted data was delivered to Detective Cox.         He reviewed the

information on the disc and discovered several videos depicting sexual acts with an

underage female. Using other data from the download, he was able to identify the

15-year-old victim.

       {¶9}   Pippin was charged in a 21-count indictment with multiple sex

offenses involving four different victims, as well as burglary, robbery, felonious

assault, and receiving stolen property. The trial court severed ten of the charges,

which related to the child victim depicted in the videos on Pippin’s cell phone.




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                 OHIO FIRST DISTRICT COURT OF APPEALS



       {¶10} In his motions to suppress the videos on his cell phone, Pippin argued

that the police had searched the contents of his phone on December 18 without a

valid signed warrant. He asserted that the December 19 search warrant did not cure

the warrantless search of the phone that had occurred on December 18. Following a

hearing at which forensic experts testified, the trial court denied the motions. The

court found that Radigan’s aborted effort to download data from the phone on

December 18 did not constitute a search because there was no evidence that the data

partially extracted at the point of interruption was viewed or even viewable.

Therefore, the court concluded, the search of the phone occurred no earlier than

December 20, when the data was next accessed and the extraction was completed

pursuant to the signed December 19 search warrant.

       {¶11} After the court denied his motions to suppress, Pippin entered pleas of

no contest to the ten charges. The court sentenced Pippin for six offenses but did not

dispose of four offenses, by merger or otherwise. We dismissed Pippin’s direct

appeal for lack of jurisdiction because the trial court’s judgment was not a final

order. See State v. Pippin, 1st Dist. Hamilton No. C-150061, 2016-Ohio-312.

       {¶12} Thereafter, the trial court issued a sentencing entry that disposed of

the remaining four offenses. The court merged two offenses of sexual battery and

two offenses of unlawful sexual conduct with a minor with two rape offenses. The

court sentenced Pippin to consecutive eight-year prison terms for the rape offenses,

and ordered the terms to run consecutively to concurrent eight-year prison terms for

four counts of pandering sexually-oriented matter involving a minor, for a total of 24

years. Pippin now appeals.




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                  OHIO FIRST DISTRICT COURT OF APPEALS



                           Suppression of the Cell Phone Videos


       {¶13} In his first assignment of error, Pippin argues that the trial court erred

by failing to suppress the contents of his cell phone.       He contends that police

conducted the search of his phone in violation of his rights under the Fourth

Amendment to the United States Constitution and under Article I, Section 14, of the

Ohio Constitution.

       {¶14} Pippin also asserts, for the first time, that the seizure of his cell phone

from his residence pursuant to the December 15 search warrant was unlawful.

However, in seeking to suppress the evidence against him, Pippin challenged the

constitutionality of the search of the phone’s contents, but not the seizure of the

phone itself. He did not challenge the validity of the December 15 search warrant in

the trial court, and cannot do so for the first time on appeal. See State v. Peagler, 76

Ohio St.3d 496, 500, 668 N.E.2d 489 (1996).           Therefore, he has waived any

argument about the seizure of the phone for purposes of appeal. Id. Accordingly, we

address only the arguments regarding the phone’s contents.

       {¶15} Appellate review of a motion to suppress presents a mixed question of

law and fact. State v. Burnside, 100 Ohio St.3d 152, 2003-Ohio-5372, 797 N.E.2d 71,

¶ 8. We must accept the trial court’s factual findings if they are supported by

competent, credible evidence, but we review de novo the trial court’s application of

the law to those facts.    Id.   As a general rule, questions of probable cause are

reviewed de novo on appeal. Ornelas v. United States, 517 U.S. 690, 699, 116 S.Ct.

1657, 134 L.Ed.2d 911 (1996).

       {¶16} The Fourth Amendment to the United States Constitution protects

individuals against unreasonable governmental searches and seizures. Accord Ohio

Constitution, Article I, Section 14.    Therefore, absent certain exceptions, police



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                  OHIO FIRST DISTRICT COURT OF APPEALS



officers must obtain a warrant before conducting a search. Franks v. Delaware, 438

U.S. 154, 164, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978). In the context of cell phones,

police officers must generally secure a warrant authorizing a search of data on the

phone before conducting such a search. See Riley v. California, ___ U.S. ___, 134

S.Ct. 2473, 2485, 189 L.Ed.2d 430 (2014); State v. Smith, 124 Ohio St.3d 163, 2009-

Ohio-6426, 920 N.E.2d 949, syllabus.

       {¶17} Under the exclusionary rule, evidence seized in violation of the Fourth

Amendment may not be admitted against a defendant in a criminal prosecution,

subject to certain exceptions. Mapp v. Ohio, 367 U.S. 643, 655, 81 S.Ct. 1684, 6

L.Ed.2d 1081 (1961). In Ohio, the exclusionary rule applies to suppress evidence

seized pursuant to an unsigned search warrant. State v. Williams, 57 Ohio St.3d 24,

26, 565 N.E.2d 563 (1991) (a search warrant is void ab initio if it is not signed by a

judge before the search).

       {¶18} Under Williams, any search of the contents of Pippin’s cell phone that

occurred pursuant to the unsigned December 18 warrant would necessarily be

unlawful and its fruits suppressed. See id. The trial court resolved this issue by

determining that no search had occurred before the lawful December 19 search

warrant was issued. In so deciding, the court did not address the state’s contention

that the “inevitable discovery” exception to the exclusionary rule applied.

Nonetheless, we hold that the exception applied and that the evidence was not

subject to exclusion.

       {¶19} Under the inevitable-discovery exception to the exclusionary rule,

illegally obtained evidence is admissible at trial if it is established that the evidence

would have ultimately or inevitably been discovered during the course of a lawful

investigation. Nix v. Williams, 467 U.S. 431, 104 S.Ct. 2501, 81 L.Ed.2d 377 (1984);




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                  OHIO FIRST DISTRICT COURT OF APPEALS



State v. Perkins, 18 Ohio St.3d 193, 480 N.E.2d 763 (1985), syllabus. The state has

the burden to show within a reasonable probability that police officers would have

discovered the evidence by lawful means apart from the unconstitutional conduct.

Nix at 444; Perkins at 196.

       {¶20} The United States Supreme Court has applied the inevitable-discovery

doctrine where police officers followed a potentially illegal search with a later search

pursuant to a valid warrant that was wholly independent of the initial illegal entry.

See Murray v. United States, 487 U.S. 533, 541-543, 108 S.Ct. 2529, 101 L.Ed.2d 472

(1988) (remanding the case for consideration of the inevitable-discovery exception

where police conducted an unlawful warehouse search but later obtained a search

warrant and conducted a lawful search); Segura v. United States, 468 U.S. 796, 813-

816, 104 S.Ct. 3380, 82 L.Ed.2d 599 (1984) (illegal entry on premises by police did

not require suppression of evidence later discovered at the premises when executing

a search warrant obtained on information unconnected with the initial entry). The

exception applies when “evidence discovered during an illegal search would have

been discovered during a later legal search and the second search inevitably would

have occurred in the absence of the first.” United States v. Keszthelyi, 308 F.3d 557,

574 (6th Cir.2002).

       {¶21} Ohio courts have applied the inevitable-discovery exception under

certain circumstances to admit evidence seized from digital camera memory cards

and cell phones in cases where police had initially examined the contents of the items

without authority. In those cases, the courts determined that the evidence would

have been inevitably discovered in the course of a lawful investigation. See State v.

Workman, 2015-Ohio-5049, 52 N.E.3d 286, ¶ 46 (3d Dist.); State v. Jackson, 11th

Dist. Trumbull No. 2006-T-0123, 2007-Ohio-6932, ¶ 35.




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                  OHIO FIRST DISTRICT COURT OF APPEALS



       {¶22} In Workman, police officers sought and were granted a warrant

authorizing the search of the contents of both a cell phone and a secure digital (“SD”)

memory card from a camera. A forensics analyst discovered a second SD card as he

was examining the evidence delivered to him and assumed that he was authorized to

search both SD cards. Workman at ¶ 31.

       {¶23} The Third Appellate District held that photographs obtained from the

search of the second SD card were admissible at trial because the state showed by a

reasonable probability that the photographs would have been inevitably discovered

during the course of a lawful investigation.      Id. at ¶ 42.   The court cited the

investigating detective’s testimony that he would have sought a warrant to search the

second SD card had he known it existed. The court then concluded that the same

facts demonstrating probable cause to search the cell phone and the first SD card

“would have been used to establish the requisite probable cause to secure a search

warrant to search the second SD card.” Id. at ¶ 44. The court stated:

       This is not a case where law enforcement could have obtained a

       warrant, yet chose not to. * * * Applying the inevitable-discovery

       doctrine to this case prevents the State from being put in a worse

       position as a result of the wrongful search because the evidence would

       have been inevitably discovered by lawful means.

(Citations omitted.) Id. at ¶ 45.

       {¶24} In Jackson, the Eleventh Appellate District similarly held that the

exclusionary rule did not apply to bar the contents of the defendant’s cell phones in a

prosecution for rape and pandering obscenity involving a minor. Jackson, 11th Dist.

Trumbull No. 206-T-0123, 2007-Ohio-6932, at ¶ 35.           The court held that even

though police officers had conducted an unlawful warrantless search of the phones,




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                    OHIO FIRST DISTRICT COURT OF APPEALS



the contents of the phones would have been inevitably discovered pursuant to the

lawful warrant that the officers secured soon after the initial search. Id. The court

stated:

          This is not a case where the police illegally searched and seized an

          item, but rather, the phones were already in lawful custody and a

          search warrant was pending.         Most importantly, the officers had

          grounds for the issuance of a warrant to search the phones and had

          taken steps to procure a warrant.

Id. at ¶ 33.

          {¶25} In this case, we assume for the sake of argument that Officer Radigan’s

actions on December 18 constituted an unlawful warrantless search. We hold that

even if an unlawful search occurred, the state proved by a reasonable probability that

the videos on Pippin’s phone would have been, and in fact were, inevitably

discovered pursuant to the lawful December 19 warrant. In seeking the December 19

warrant, the police relied on the same facts used to establish the requisite probable

cause to secure the December 18 warrant, and included no information learned from

Officer Radigan’s initial processing attempt. See Workman, 2015-Ohio-5049, 52

N.E.3d 286, at ¶ 44; Jackson at ¶ 33. Therefore, the unlawful search “could not

affect the issuing judge’s decision to issue a warrant because the search warrant

affidavit included no information gleaned from the unlawful search.” See United

States v. Witherspoon, 467 Fed.Appx. 486, 491 (6th Cir.2012).           Therefore, the

contents of the phone were admissible at trial under the inevitable-discovery

exception. We recognize that we are deciding the suppression issue on grounds

different from those relied on by the trial court, but our decision rests squarely on




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                  OHIO FIRST DISTRICT COURT OF APPEALS



evidence adduced at the suppression hearing, and the trial court had an opportunity

to address the issue. See Peagler, 76 Ohio St.3d at 501, 668 N.E.2d 489.

       {¶26} Pippin also asserts that the December 18 search warrant was issued

without probable cause. We will presume that his argument applies also to the

December 19 warrant, which was issued upon the same affidavit that supported the

unsigned December 18 warrant.

       {¶27} In determining the sufficiency of probable cause in an affidavit

submitted in support of a search warrant, “[t]he task of the issuing magistrate is

simply to make a practical, common-sense decision whether, given all the

circumstances set forth in the affidavit before him, * * * there is a fair probability that

contraband or evidence of a crime will be found in a particular place.” State v.

George, 45 Ohio St.3d 325, 544 N.E.2d 640 (1989), paragraph one of the syllabus,

quoting Illinois v. Gates, 462 U.S. 213, 238-239, 103 S.Ct. 2317, 76 L.Ed.2d 527

(1983). Great deference must be given to a magistrate’s determination of probable

cause, and “doubtful or marginal cases in this area should be resolved in favor of

upholding the warrant.” George at paragraph two of the syllabus.

       {¶28} Here, as we will discuss more fully in our analysis of the second

assignment of error, the warrant affidavit amply supported the issuing magistrate’s

determination of probable cause. The affidavit set forth facts establishing a fair

probability that evidence relating to the sex and burglary offenses would be found on

Pippin’s phone.

       {¶29} Finally, Pippin challenges the particularity of the search warrant. He

asserts that the warrant failed to identify with particularity what the police were

looking for in his cell phone.




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                  OHIO FIRST DISTRICT COURT OF APPEALS



       {¶30} In assessing whether a warrant meets the particularity requirement of

the Fourth Amendment, courts must consider “whether the warrant provides

sufficient information to ‘guide and control’ the judgment of the executing officer in

what to seize,” and “whether the category as specified is too broad in that it includes

items that should not be seized.” (Internal citations omitted.) State v. Castagnola,

145 Ohio St.3d 1, 2015-Ohio-1565, 46 N.E.3d 638, ¶ 79. Even if a search warrant

includes broad categories of items to be seized, it “may nevertheless be valid when

the description is ‘as specific as the circumstances and the nature of the activity

under investigation permit.’ ” Id. at ¶ 80, quoting Guest v. Leis, 255 F.3d 325, 336

(6th Cir.2001).

       {¶31} The December 19 search warrant set forth the issuing judge’s findings

that (1) there was probable cause to believe that Pippin had committed rape and

burglary offenses, (2) there was probable cause to believe that evidence relating to

the rape and burglary offenses would be obtained through a search of the cell phone,

and (3) in particular, “the evidence seized will reveal details of the involvement of the

participants, identities of victims, owners, and evidence of the alleged violations.”

The warrant particularly described Pippin’s cell phone by brand, model, serial, and

assigned telephone number, and authorized a search of the phone for “Electronic

Serial Numbers, Mobile Identification Numbers, any and all other data that has been

programmed into and/or received or recorded by” the device.

       {¶32} In this case, the warrant was neither overbroad nor insufficiently

particular. The warrant specifically identified the cell phone to be searched and

limited the scope of the search to evidence of particular crimes. See Castagnola at ¶

79. The language of the warrant provided sufficient guidance to the police to search

for only the items to be seized: evidence relating to the crimes of rape and burglary.




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                   OHIO FIRST DISTRICT COURT OF APPEALS



“There is nothing inherently improper about the authorization to search the entire

contents of the phone[s], provided * * * that there is a fair probability of finding

evidence related to the [listed crime].” State v. Knoefel, 11th Dist. Lake No. 2014-L-

088, 2015-Ohio-5207, ¶ 128.

         {¶33} Consequently, we hold that the trial court properly denied Pippin’s

motions to suppress the contents of his cell phone. We overrule the first assignment

of error.


                                Franks v. Delaware Hearing


         {¶34} In his second assignment of error, Pippin argues that the trial court

erred by not conducting an evidentiary hearing on his challenge to the veracity of

statements in the affidavit supporting the search warrant for the contents of his cell

phone.      He contends that a hearing was required because he had sufficiently

established that the warrant affidavit contained misleading and false statements.

         {¶35} After a search warrant has been issued and executed, a defendant may,

in limited circumstances, challenge the truthfulness of factual statements made in an

affidavit supporting the warrant. Franks, 438 U.S. at 155-156, 98 S.Ct. 2674, 57

L.Ed.2d 667.      To mandate an evidentiary hearing, a defendant must make a

substantial preliminary showing that an affiant knowingly and intentionally, or with

reckless disregard for the truth, included a false statement in the warrant affidavit,

and that the false statement was necessary to the finding of probable cause. Id.

         {¶36} Even if a defendant makes a “substantial preliminary showing of a

knowing, intentional, or reckless falsity,” he is not automatically entitled to an

evidentiary hearing. State v. Roberts, 62 Ohio St.2d 170, 178, 405 N.E.2d 247

(1980); see Franks at 171-172; State v. Jordan, 1st Dist. Hamilton No. C-060336,




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                  OHIO FIRST DISTRICT COURT OF APPEALS



2007-Ohio-3449, ¶ 11.     If, after the challenged statements are disregarded, the

warrant affidavit contains sufficient material to support a finding of probable cause,

no hearing is required. Roberts at 178; Franks at 171-172.

       {¶37} In this case, without determining whether Pippin had met his initial

burden to show that the affiant had wrongfully included false statements in the

warrant affidavit, the trial court set aside the allegedly false material and concluded

that the remainder of the affidavit sufficiently supported a finding of probable cause.

       {¶38} The trial court’s conclusion is supported by the record. After redaction

of the challenged statements, the affidavit set forth that on September 1, 2012, a

woman left a certain bar in White Oak, stopped for gas at a Speedway station, and

then drove to her Delhi Township home. Once home, a man with a semiautomatic

pistol attacked and raped her. Surveillance videos from the Speedway and other

businesses showed an older style, white or light grey Jeep Cherokee that had pulled

next to a pump at a BP station across the street. No one got out of the vehicle or

pumped gas before the vehicle moved to another lot and remained there until the

woman had finished at Speedway.

       {¶39} On September 8, 2012, while police were conducting surveillance near

the same White Oak bar, a police officer stopped Pippin for a traffic violation. The

officer believed that Pippin’s Jeep Cherokee was similar to a photo of the Jeep

Cherokee at the BP station on the night of the Delhi rape.

       {¶40} On September 19, 2012, a GPS device was attached to Pippin’s vehicle

on the authority of search warrants, and police began tracking its movements.

       {¶41} On October 26, 2012, Pippin contacted police about being a

confidential informant. He told them that he carried a simulator 9 mm gun. He

“Googled” a picture of the simulator gun on his cell phone and officers noted that it




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                 OHIO FIRST DISTRICT COURT OF APPEALS



looked like a real 9 mm semiautomatic firearm. Pippin initially told them that he

drove a grey 1989 Jeep Cherokee, but admitted that he had painted it blue.

       {¶42} On November 21, 2012, a police officer took a burglary report on a

home on Squirrel Creek Lane in Colerain Township. The property stolen in the

burglary included a cell phone, credit cards, and a camera.

       {¶43} On December 15, 2012, police conducted a search of Pippin’s residence

pursuant to a search warrant. The camera stolen during the Squirrel Creek Lane

burglary was recovered in Pippin’s bedroom. The police also recovered Pippin’s cell

phone and transported it to the property room of the Delhi Township Police station.

       {¶44} The affiant, Detective Cox, had experience and training in the

investigation of burglary and rape offenses. Through his experience and training,

Cox learned that suspects who engage in that type of criminal activity frequently used

cell phones and other data storage devices to maintain records or to conduct

communications related to their offenses. He expected that the search of the data in

Pippin’s phone would (1) establish that Pippin had committed the burglary offense;

(2) contain pictures or video that may have been taken during the offenses; and (3)

reveal the identity of persons to whom Pippin may have sold property taken in the

burglary.

       {¶45} Following our review of the redacted warrant affidavit, we conclude

that it sufficiently supported the issuing magistrate’s determination of probable

cause. See George, 45 Ohio St.3d at 329, 544 N.E.2d 640; Gates, 462 U.S. at 238,

103 S.Ct. 2317, 76 L.Ed.2d 527. The remainder of the affidavit established a fair

probability that evidence of the burglary or rape offenses would be found in the

contents of Pippin’s cell phone. Therefore, any inaccuracies in the affidavit were

irrelevant, and the trial court properly denied Pippin’s request for an evidentiary




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hearing on the December 18 search warrant. See Franks, 438 U.S. at 172, 98 S.Ct.

2674, 57 L.Ed.2d 667, fn. 8. We overrule the second assignment of error.


                                          Merger


        {¶46} In his third assignment of error, Pippin argues that the trial court

erred by failing to merge allied offenses of similar import. He contends that the

court should have merged the two rape offenses into a single rape offense and the

four pandering offenses into a single pandering offense.

        {¶47} Under R.C. 2941.25(B), a defendant may be convicted of multiple

offenses arising from the same conduct if any one of the following is true: (1) the

conduct constitutes offenses of dissimilar import, (2) the conduct shows that the

offenses were committed separately, or (3) the conduct shows that the offenses were

committed with separate animus. State v. Ruff, 143 Ohio St.3d 114, 2015-Ohio-995,

34 N.E.3d 892, paragraph three of the syllabus.

        {¶48} The defendant bears the burden of demonstrating that he is entitled to

merger at sentencing pursuant to R.C. 2941.25. State v. Washington, 137 Ohio St.3d

427, 2013-Ohio-4982, 999 N.E.2d 661, ¶ 18, citing State v. Mughni, 33 Ohio St.3d

65, 67, 514 N.E.2d 870 (1987). We review the trial court’s merger determination de

novo. See State v. Williams, 134 Ohio St.3d 482, 2012-Ohio-5699, 983 N.E.2d 1245,

¶ 28.

        {¶49} With respect to the rape offenses, Pippin argues that both counts of

rape relate to the “same act, same day, same location, and same victim.” However,

the record demonstrates that, although both rape counts involved the same type of

sexual activity—fellatio—and were committed within a short time of each other, there

were two separate and distinct acts of penetration, separated by significant




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intervening acts. See State v. Jones, 78 Ohio St.3d 12, 14, 676 N.E.2d 80 (1997). The

first act of rape occurred while the girl was apparently semi-conscious. That act was

followed by a withdrawal from the girl’s mouth, the girl’s apparent loss of

consciousness, and then the defendant’s forceful penetration of the unconscious

girl’s mouth.

         {¶50} Next, Pippin asserts that the four counts of pandering related to four

video files found on his phone that recorded the same course of conduct. However,

multiple convictions are allowed for each individual video file because a separate

animus exists every time a separate image or file is created and saved. See State v.

Stone, 1st Dist. Hamilton No. C-040323, 2005-Ohio-5206, ¶ 9; State v. Hendricks,

8th Dist. Cuyahoga No. 92213, 2009-Ohio-5556, ¶ 35; State v. Eal, 10th Dist.

Franklin No. 11AP-460, 2012-Ohio-1373, ¶ 93; State v. Starcher, 5th Dist. Stark No.

2015CA00058, 2015-Ohio-5250, ¶ 35; State v. Lucicosky, 7th Dist. Mahoning No. 16

MA 0112, 2017-Ohio-2960, ¶ 23.

         {¶51} Therefore, the two counts of rape and the four counts of pandering

were committed separately for purposes of R.C. 2941.25, and the trial court did not

err by failing to merge them for sentencing. We overrule the third assignment of

error.


                                   Consecutive Sentences


         {¶52} In his fourth assignment of error, Pippin argues that the trial court

erred by imposing consecutive sentences. We will not vacate or modify a felony

sentence unless we clearly and convincingly find either that the record does not

support the trial court’s findings under the relevant statutes or that the sentence is




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                  OHIO FIRST DISTRICT COURT OF APPEALS



otherwise contrary to law. State v. Marcum, 146 Ohio St.3d 516, 2016-Ohio-1002,

59 N.E.3d 1231, ¶ 1.

       {¶53} Here, the trial court made the consecutive-sentencing findings

required under R.C. 2929.14(C), announced the findings at the sentencing hearing,

and incorporated the findings into its sentencing entry. See State v. Bonnell, 140

Ohio St.3d 209, 2014-Ohio-3177, 16 N.E.3d 659, syllabus; State v. McGee, 1st Dist.

Hamilton No. C-150496, 2016-Ohio-7510, ¶ 32. Therefore, the court did not err in

imposing consecutive sentences. We overrule the fourth assignment of error and

affirm the judgment of the trial court.

                                                                      Judgment affirmed.


CUNNINGHAM, P.J., and MILLER, J., concur.


Please note:

       The court has recorded its own entry on the date of the release of this opinion.




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