[Cite as State v. Aguirre, 2012-Ohio-2014.]




                       IN THE COURT OF APPEALS OF OHIO
                           THIRD APPELLATE DISTRICT
                                SENECA COUNTY



STATE OF OHIO,

        PLAINTIFF-APPELLEE,                           CASE NO. 13-11-19

        v.

JAMIE AGUIRRE,                                        OPINION

        DEFENDANT-APPELLANT.


STATE OF OHIO,

        PLAINTIFF-APPELLEE,                           CASE NO. 13-11-20

        v.

JAMIE AGUIRRE,                                        OPINION

        DEFENDANT-APPELLANT.



                 Appeals from Seneca County Common Pleas Court
                  Trial Court Nos. 2010 CR 0015 and 10-CR-0037

                        Judgment Affirmed in Case No. 13-11-19

                  Judgment Affirmed in Part, Reversed on Part and
                      Cause Remanded in Case No. 13-11-20

                               Date of Decision: May 7, 2012
Case Nos. 13-11-19 and 13-11-20



APPEARANCES:

       Lisa A. Miller for Appellant

       Derek W. DeVine for Appellee




WILLAMOWSKI, J.

       {¶1} Defendant-appellant Jamie Aguirre (“Aguirre”) brings this appeal

from the judgment of the Court of Common Pleas of Seneca County. Aguirre

claims that the trial court erred by 1) denying his motion to suppress; 2) denying

his motion for acquittal; and 3) miscalculating the jail time credit. This court

notes that this appeal is taken from two separate cases which were consolidated for

the purposes of briefing and argument. For the reasons set forth below, the

judgment is affirmed in part and reversed in part.

       {¶2} On October 5, 2009, Officer John Pettit (“Pettit”) and Officer Steve

Gyoker (“Gyoker”) were on patrol when they were dispatched to the area of

Interstate 76 and State Route 43 for a possibly intoxicated driver. The dispatch

was the result of an anonymous phone tip. Once in the area, they observed a

vehicle matching the described one parked at a pay phone. When the vehicle

departed, Pettit began following it. The vehicle then abruptly changed lanes in




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Case Nos. 13-11-19 and 13-11-20


front of Pettit and almost caused a collision as the vehicle attempted to enter I-76.

Pettit then activated the overhead lights and initiated a traffic stop.

        {¶3} After stopping Aguirre, Pettit became suspicious of Aguirre when he

appeared to be taking a longer route than necessary home from a football game.1

While speaking to Aguirre, Pettit noticed two cell phones in the console. Pettit

questioned Aguirre as to why he was using a pay phone if he had two cell phones.

Aguirre nervously responded that the phones were not working. Given that the

area was one known for high drug trafficking, Pettit was suspicious and asked

Aguirre for permission to search his vehicle. Aguirre consented. During the

search, Pettit and Gyoker found various drug paraphernalia, five marijuana

cigarettes, and other contraband. Aguirre was then arrested for possession of

drugs and a tow truck was called to remove the vehicle. Before the tow truck

arrived, Pettit and Gyoker conducted an inventory search of the vehicle and found

additional items, including a wireless camera, a third cell phone, a pal trio phone

with memory cards among other items.

        {¶4} Once at the station, Aguirre was questioned concerning the contents of

the phones and memory cards.                 Aguirre gave written consent to the officers

permitting them to view them.                  The officers discovered videos of women

undressing in a medical facility exam room, still pictures of a young boy without


1
   This court does not hold that merely avoiding the turnpike in favor of an interstate or any other legal
route of travel is suspicious behavior, even if it takes longer.

                                                   -3-
Case Nos. 13-11-19 and 13-11-20


clothing, and two videos of a young girl putting on underwear in a laundry room.

The officers then obtained a warrant to further search the vehicle and discovered a

photograph of a minor female with her breasts exposed.           During a police

interview, it was determined that the videos of the women were taken in Seneca

County, Ohio.

        {¶5} On January 27, 2010, a Seneca County Grand Jury indicted Aguirre

with thirteen counts of illegal use of a minor in nudity oriented materials or

performance, felonies of the second degree in violation of R.C. 2907.323, and

fifty-nine counts of voyeurism, misdemeanors of the first degree in violation of

R.C. 2907.08. This indictment resulted in case number 2010 CR 0015. A second

indictment was issued on February 24, 2010, charging Aguirre with thirteen

counts of illegal use of a minor in nudity oriented materials or performance,

felonies of the second degree in violation of R.C. 2907.323. This indictment was

assigned case number 2010 CR 0037. Aguirre entered pleas of not guilty to all

charges. On March 17, 2010, the State filed a motion to dismiss counts 1-13 in

case number 2010 CR 0015 because they were the same charges filed in case

number 2010 CR 0037. The motion was granted by the trial court on March 18,

2010.

        {¶6} On March 10, 2010, Aguirre filed motions to suppress in both cases.

Amended motions to suppress were filed in both cases on June 9, 2010. A hearing


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Case Nos. 13-11-19 and 13-11-20


was held on the motions on August 31, 2010. At the hearing, both Aguirre and the

State stipulated that the trial court would consider the transcript of a hearing on a

motion to suppress and the exhibits from that hearing in Portage County and that

no new evidence would be heard. The parties then submitted written briefs in

support of their positions. On September 29, 2010, the trial court overruled the

motions to suppress.

       {¶7} On February 17, 2011, Aguirre waived his right to a jury trial. The

trial in case number 2010 CR 0037 was held on March 1, 2011. Prior to the start

of trial, Aguirre filed a motion in limine requesting that any evidence or images

not the subject of one of the counts of the indictment would be excluded. This

motion was overruled. The State filed a motion to dismiss count 13 of the

indictment, which was granted. At the conclusion of the trial, the trial court found

Aguirre guilty of the remaining 12 counts of the indictment. Aguirre then changed

his pleas in case number 2010 CR 0015 to no contest pleas. On March 30, 2011,

the trial court found Aguirre guilty of all counts in case number 2010 CR 0015. A

sentencing hearing was held on May 13, 2011. The trial court sentenced Aguirre

to eight years in prison on each count in case number 2010 CR 0037, with each

sentence to be served concurrently. In case number 2010 CR 0015, Aguirre was

sentenced to 180 days for each of the counts, with all counts to run concurrent to




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Case Nos. 13-11-19 and 13-11-20


each other and to the counts in case number 2010 CR 0037. Aguirre appeals from

these judgments and raises the following assignments of error.

                           First Assignment of Error

      The trial court erred to the prejudice of [Aguirre] by denying his
      motion to suppress evidence at trial on the grounds that the
      warrantless search of his automobile and resulting seizure of
      certain evidence incident thereto was in violation of [Aguirre’s]
      rights and protections as guaranteed by the Fourth and
      Fourteenth Amendments to the Constitution of the United States
      and by Article I, Section 14 of the Constitution of the State of
      Ohio.

                          Second Assignment of Error

      The trial court erred to the prejudice of [Aguirre] by denying
      [Aguirre’s] criminal rule 29 motion for directed verdict of
      acquittal when there was insufficient evidence to prove the
      elements of the crime of illegal use of a minor in nudity oriented
      material or performance (counts one through twelve of the
      indictment), in violation of R.C. 2907.323, by proof beyond a
      reasonable doubt.

                          Third Assignment of Error

      The trial court erred to the prejudice of [Aguirre] by denying his
      motion for jail-time credit back to the date of his arrest in
      violation of his rights under the Fourteenth Amendment to the
      Constitution of the United States and by Article I, Section 14 of
      the Constitution of the State of Ohio for Equal Protection under
      the law.

The appeal from case no. 2010 CR 0015 was assigned Appellate Case No. 13-11-

19 and the appeal from case no. 2010 CR 0037 was assigned Appellate Case No.

13-11-20.


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Case Nos. 13-11-19 and 13-11-20


         {¶8} In the first assignment of error, Aguirre claims that the trial court erred

in denying his motion to suppress. This assignment of error applies to both appeal

number 13-11-19 and 13-11-20. Aguirre argues that the officer’s warrantless

search of the vehicle violated his constitutional rights. This court notes that this

exact same assignment of error was challenged in his appeal from the judgment of

the Portage County Court of Common Pleas to the 11th District Court of Appeals.

See State v. Aguirre, 11th Dist. No. 2010-P-0057, 2012-Ohio-644. This appeal is

based on the same transcript as the one reviewed by the 11th District Court of

Appeals.

         {¶9} The review of a motion to suppress involves issues of both law and

fact. State v. Burnside, 100 Ohio St.152, 2003-Ohio-5372, ¶ 8. The trial court

acts as the trier of facts and is in the best position to weigh the evidence and

evaluate the credibility of the witnesses2. Id. Thus, an appellate court must accept

the trial court’s findings of fact as long as they are supported by competent,

credible evidence. Id. Then the appellate court may conduct a de novo review of

the trial court’s application of the law to those facts. State v. Anderson, 100 Ohio

App.3d 688, 691 (4th Dist.1995)

         {¶10} Like the Portage County Court of Common Pleas, the Seneca County

Court of Common Pleas found that the officer had probable cause to stop the


2
  Interestingly, in this case the trial court did not hear the testimony or observe the witnesses. Instead, the
trial court merely reviewed the trial transcript as this court will do as well.

                                                     -7-
Case Nos. 13-11-19 and 13-11-20


vehicle and to continue the detention beyond the warning that was given. The trial

court made the following findings of fact.

      Officer John Pettit * * * was notified by the dispatcher that the
      department had received a report of a white Ford pickup truck
      near the intersection of State Route 45 and Interstate 76 being
      operated by a suspected drunk driver. As a result of that
      information, the officer observed a vehicle matching the
      description parked near a pay phone at the Quick Stop and the
      occupant of that vehicle was using the pay phone. The driver of
      that vehicle, upon leaving the Quick Stop parking lot, pulled
      onto State Route 43 and proceeded southbound, stopping at the
      traffic signal where State Route 43 and Interstate 76 westbound
      intersect, after having pulled into the left lane. Officer Pettit
      pulled out to follow the vehicle but stayed in the right lane.
      When the light changed to green, the defendant made a right
      turn from the left lane and crossing the lane occupied by the
      patrolman to proceed onto the ramp to Interstate 76 West. The
      officer had to apply his brakes in order to avoid colliding with
      the defendant’s vehicle.

      The patrolman activated his lights and stopped the defendant’s
      vehicle on the freeway on-ramp, explaining to the defendant that
      he was stopped for making an improper turn. As the officer
      spoke with the defendant at the driver’s door, he was able to
      observe two cell phones in the center console of the vehicle. He
      questioned the driver as to why he had used the pay phone at the
      Quick Stop since he obviously had two phones in his possession
      and readily available to him. The driver’s explanation was that
      one cell phone was not in good working order and that he didn’t
      want to use the other cell phone because by so doing one
      girlfriend would have the ability to find out he was calling a
      second girlfriend.

      Although the defendant did not have an odor of alcohol on or
      about his person, the officer did note that the defendant’s eyes
      were red and glassy. That, coupled with the officer’s suspicions
      being aroused by the defendant’s use of a pay phone in spite of
      having the use of cell phones at his disposal, prompted the

                                        -8-
Case Nos. 13-11-19 and 13-11-20


       officer to ask the defendant if he could search the vehicle, even
       though a records search revealed no outstanding warrants for
       the defendant. The defendant consented to the search adding
       that the officer wouldn’t find anything.

       ***

       Clearly, law enforcement had the right to stop the defendant
       after the illegal turn. The rest simply followed. The Court
       listened to the interview. At no time did the defendant request
       an attorney.

September 29, 2010 Judgment Entry, 1-3. A review of the record indicates that

the facts found by the trial court were supported by competent, credible evidence.

Additionally, a review of the transcript indicates that Pettit testified that Aguirre

was “a little bit nervous, wouldn’t make direct eye contact, looking around the

vehicle, acted somewhat suspicious.” Jan. 26, 2010, Motion to Suppress Tr., 11.

Pettit further testified that although he did not believe Aguirre had been drinking,

the red and glassy eyes made him believe that Aguirre may have been under the

influence of drugs. Tr. 12. All of this evidence clearly indicates that the findings

of fact by the trial court were supported.

       {¶11} The next question is whether the trial court correctly applied the law

to the facts. Aguirre claims that the extended detention was an illegal seizure

under State v. Robinette, 80 Ohio St.3d 234 (1997).         In Robinette, the Ohio

Supreme Court held that a police officer does not have the authority to detain a

suspect beyond the time to complete the initial stop to request and execute a search


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Case Nos. 13-11-19 and 13-11-20


without probable cause to do so. The officer in Robinette, did not provide any

additional information beyond the reasons for the original stop upon which to base

the request to search the vehicle. For that reason, the Court determined that the

search was illegal. The Court did hold, however, that if during the initial stop the

officer detects reasonably articulable facts giving rise to a suspicion of criminal

activity, the detention may be extended for additional investigation. Id. at 241.

This case is not like Robinette because the officer in this case was able to

articulate facts which raised his suspicion of drugs. When asked what his probable

cause was for extending the detention and requesting to search the vehicle, Pettit

testified as follows.

       The fact that, his nervousness, traveling on the Interstate,
       getting off the Interstate to use a pay phone with two working
       pay phones (sic) really led me to believe that he might be
       engaging in some kind of illegal drug activity, possibly a courier,
       possibly making a phone case to meet, contact somebody he
       doesn’t want to be tracked to via the cell phones.

Tr. 14. Specifically, the officer suspected that the red and glassy eyes might be the

result of drug intoxication and Aguirre’s behavior indicated that he might be

engaged in criminal activity. This is sufficient suspicion to justify extending the

search. “We conclude that, though the initial purpose for the stop came to an end

when the officer decided not to give appellant a citation for the illegal turn, other

circumstances came to the officer’s attention during the stop to justify his

continued investigation.” Aguirre, supra at ¶ 38.

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Case Nos. 13-11-19 and 13-11-20


       {¶12} Aguirre also argues that even if the continued detention was valid,

his consent to search the vehicle was not freely given. In general, a warrantless

search based upon the consent of the defendant is permissible as long as the

consent is voluntarily given. Schneckloth v. Bustamonte, 412 U.S. 218, 248-49, 93

S.Ct. 2041, 36 L.Ed.2d 854 (1973).         The burden of proving by clear and

convincing evidence that the consent was voluntarily given is on the prosecution.

Id. “[W]here the validity of a search rests on consent, the State has the burden of

proving that the necessary consent was obtained and that it was freely and

voluntarily given, a burden that is not satisfied by showing a mere submission to a

claim of lawful authority.” Florida v. Royer, 460 U.S. 491, 497, 103 S.Ct. 1319,

75 L.Ed.2d 229.

       {¶13} Here, the only witness presented at the hearing on the motion to

suppress was Pettit. He testified as follows.

       After it was established he was a valid driver I had reason to
       believe there was something going on with Mr. Aguirre with the
       pay phone and just him getting off the Interstate to use it with
       two working cell phones, his red, glassy eyes. I asked him if he
       was involved in any kind of illegal drug activity, if there was (sic)
       any drugs in the vehicle. He said there wasn’t. So at that time
       I’d given him his driver’s license back and I said, “Would you
       give us consent to search your vehicle?”

       Mr. Aguirre says, “There is nothing in my truck, you can look if
       you want. You’re not going to find anything,” and he stepped
       out of the vehicle. At that time he went and stood with Officer
       Helmling in front of my patrol vehicle where he could see the


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Case Nos. 13-11-19 and 13-11-20


           search being conducted, and he stood with him then the whole
           time.

Tr. 13-14. Thus, the only evidence before the trial court was that Aguirre was

asked if they could search and he voluntarily said yes and exited the vehicle. No

evidence was presented that the reason for the consent was due to a mere

submission to a claim of lawful authority or was coerced in any manner. Aguirre

also didn’t present any evidence that he did not feel he was free to refuse the

request and leave. Without some evidence to the contrary, the only evidence

supports the trial court’s determination that the consent to search the vehicle was

voluntary. The first assignment of error is overruled.

           {¶14} In the second assignment of error Aguirre claims that the trial court

erred in denying his Crim.R. 29 motion for acquittal because there was insufficient

evidence to prove the offenses. This assignment of error only applies to appeal

number 13-11-20.3 When determining whether there is sufficient evidence to

support a conviction, “[t]he relevant inquiry is whether, after viewing the evidence

in a light most favorable to the prosecution, any rational trier of fact could have

found the essential elements of the crime proven beyond a reasonable doubt.”

State v. Jenks, 61 Ohio St.3d 259, 574 (1991), ¶ 2 of the syllabus.

           {¶15} Aguirre was convicted of twelve counts of illegal use of a minor in

nudity oriented material in violation of R.C. 2907.323(A). All of the charges were

3
    Case number 13-11-19 was resolved by a finding of guilt following a no contest plea.

                                                     -12-
Case Nos. 13-11-19 and 13-11-20


felonies of the second degree.    R.C. 2907.323(A) states in pertinent part as

follows.

      (A) No person shall do any of the following:

      (1) Photograph any minor who is not the person’s child or
      ward in a state of nudity, or create, direct, produce, or transfer
      any material or performance that shows the minor in a state of
      nudity, unless both of the following apply:

      (a) The material or performance is, or is to be, sold,
      disseminated, displayed, possessed, controlled, brought or
      caused to be brought into this state, or presented for a bona fide
      artistic, medical, scientific, educational, religious, governmental,
      judicial, or other proper purpose, by or to a physician,
      psychologist, sociologist, scientist, teacher, person pursuing bona
      fide studies or research, librarian, member of the clergy,
      prosecutor, judge, or other person having a proper interest in
      the material or performance;

      (b) The minor’s parents, guardian, or custodian consents in
      writing to the photographing of the minor, to the use of the
      minor in the material or performance, or to the transfer of the
      material and to the specific manner in which the material or
      performance is to be used.

      {¶16} A review of the record indicates that at no time did Aguirre have

permission from any of the parents to possess the pictures of the children. The

only real question is whether the photos depicted the minor’s “in a state of

nudity.” This very question was addressed by the Ohio Supreme Court in State v.

Young, 37 Ohio St.3d 249 (1988). In Young, the Court limited the definition of “a

state of nudity” to one “where such nudity constitutes a lewd exhibition or

involves a graphic focus on the genitals * * *.” Id. at 252. See also Osborne v.

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Case Nos. 13-11-19 and 13-11-20


Ohio, 495 U.S. 103, 110 S.Ct. 1691, 109 L.Ed.2d 98 (holding that R.C.

2907.323(A) was not overbroad since the Ohio Supreme Court limited the

definition of nudity in Young). Several courts have required the definition of

“state of nudity” as used in R.C. 2907.323 to include a lewd exhibition or involve

a graphic focus on the genitals. State v. Sullivan, 2d Dist. No. 23948, 2011-Ohio-

2976, ¶ 27; State v. Dolman, 6th Dist. No. WM-10-007, 2010-Ohio-5505; State v.

Graves, 184 Ohio App.3d 39, 2009-Ohio-974 (4th Dist.); State v, Huffman, 165

Ohio App.3d 518, 2006-Ohio-1106 (1st Dist.); State v. O’Connor, 12th Dist. No.

CA2001-08-195, 2002-Ohio-4122; State v. Park, 5th Dist. No. 00-CA-0110, 2001

WL 1771068 (Aug. 20, 2001); and State v. Walker, 134 Ohio App.3d 89, 94-95

(1999) (4th Dist.). The term “lewd” has been defined as follows:

       1. a. Preoccupied with sex and sexual desire; lustful.              B.
       Obscene; indecent. 2. Wicked.

The American Heritage Dictionary 726 (2nd Ed. 1985).

       {¶17} The majority of the images making up the charges in this case were

x-rays, MRI images, or CT scan images in which images of genitalia may be seen,

even though the victims were fully dressed when the image was made. The

question before this court is whether the images show a “state of nudity” that

includes a lewd exhibition or involves a graphic focus on the genitalia.

       {¶18} Count One of the indictment alleged as follows:



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Case Nos. 13-11-19 and 13-11-20


       On or about March 10, 2008 through February 6, 2009, in
       Seneca County, Ohio [Aguirre] did knowingly transfer material,
       to wit: one or more photographs of a minor, to wit: Jane Doe,
       #1, age 15-16, New Riegel, Ohio. Said Jane Doe #1 is not the
       child of [Aguirre] and said photographs display the child in a
       state of nudity and said photograph is lewd or has a graphic
       focus on the genitals.

Feb. 24, 2010 Indictment, 1. In support of this assignment of error, the State

presented Exhibit 1 which is an x-ray image of a hip socket. Given that this is an

x-ray image, it does not meet the definition of lewd as it is not preoccupied with

sex and sexual desire, lustful, obscene, indecent, or wicked. It is nothing more

than an x-ray image regardless of to what use Aguirre may have put it. Without

the lewd exhibition the image must have a graphic focus on the genitals to find a

violation of the statute. The definition of graphic is something that is clearly set

forth or described in vivid detail. The American Heritage Dictionary 573 (2nd Ed.

1985). This image does not focus on the genitals and the genitalia is barely

discernible with no detail. Thus, there was not sufficient evidence to show that

Exhibit 1 met the definition of the illegal use of a minor in nudity oriented

material as required by law. For this reason, the trial court erred in finding the

evidence sufficient to find Aguirre guilty of Count 1 of the indictment.

       {¶19} Count Two of the indictment alleged as follows:

       On or about August 31, 2006, * * * [Aguirre] did knowingly
       transfer material, to wit: one or more photographs of a minor,
       to wit: Jane Doe, #2, age 9, Tiffin, Ohio. * * *


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Case Nos. 13-11-19 and 13-11-20


Feb. 24, 2010 Indictment, 2. The State presented Exhibits 2A and 2B in support

of this count. The images again are medical images, but unlike Exhibit 1, Exhibits

2A and 2B do have a graphic focus on the genitalia of the minor. The minor’s

father testified as to the minor’s birthdate and that Aguirre was not given

permission to transfer the images for his personal use. Viewing this evidence in a

light most favorable to the State, the evidence is sufficient to support a finding of

guilty on Count Two.

       {¶20} Count Three of the indictment alleged as follows:

       On or about January 30, 2008 through October 8, 2009, * * *
       [Aguirre] did knowingly transfer material, to wit: one or more
       photographs of a minor, to wit: Jane Doe, #3, age 12-14, New
       Riegel, Ohio. * * *

Feb. 24, 2010 Indictment, 2. In support of this count, the State presented Exhibits

3A, 3B, 3C, 3D, 3E, and 3F. Images 3A, 3B, and 3C are photographs of the minor

fully dressed, thus there is no nudity in them. However, images 3D, 3E, and 3F

are medical images of the minor’s pelvic region and the genitals are clearly

visible.   The State also presented the testimony of the minor’s mother who

testified as to the minor’s birthdate and that Aguirre was not given permission to

transfer the images for his personal use. Viewing this evidence in a light most

favorable to the State, the evidence is sufficient to support a finding of guilty on

Count Three.

       {¶21} In Count Four of the indictment, the State alleged as follows:

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Case Nos. 13-11-19 and 13-11-20


         On or about March 15, 2007 through March 31, 2009, * * *
         [Aguirre] did knowingly transfer material, to wit: one or more
         photographs of a minor, to wit: Jane Doe, #4, age 11-13, New
         Riegel, Ohio. * * *

Feb. 24, 2010 Indictment, 2. The State presented Exhibits 4A, 4B, 4C, 4D, 4E,

4F, 4G, and 4H to prove this count. Exhibits 4D, 4E, and 4H are medical images

that shows a shadowy outline of the breasts. However, there is no detail and it is

not a lewd exhibition. It does not provide a graphic focus on the genitals. Thus,

these photos do not meet the statutory definitions. However, Exhibits 4A, 4B, 4C,

4F, and 4G do have a graphic focus on the genitals. This meets the statutory

requirements.        Additionally, the State presented the testimony of the minor’s

mother who testified as to the minor’s birthdate and that Aguirre was not given

permission to transfer the images for his personal use. Viewing this evidence in a

light most favorable to the State, the evidence is sufficient to support a finding of

guilty on Count Four.

         {¶22} Count Five of the indictment alleged as follows:

         On or about October 31, 2007 through December 15, 2008, * * *
         [Aguirre] did knowingly transfer material, to wit: one or more
         photographs of a minor, to wit: Jane Doe, #5, age 15-16, Tiffin,
         Ohio. * * *

Feb. 24, 2010 Indictment, 3. The State presented Exhibit 5 in support of this

count. The minor in Exhibit 5 is shown to be six years of age.4 The exhibit shows


4
   This court recognizes that the State failed to prove the facts alleged in the indictment, which claimed the
child was 15-16 years of age, not 6 years of age. However, this was not raised by Aguirre at any time and

                                                    -17-
Case Nos. 13-11-19 and 13-11-20


a medical image of the hip and pelvic area. The genital area is clearly visible.

The father of the minor testified as to the minor’s birthdate and that Aguirre did

not have permission to transfer the image for his personal use. Viewing the

evidence in a light most favorable to the State, the evidence is sufficient to support

a finding of guilty on Count Five.

         {¶23} Count Six of the indictment alleged as follows:

         On or about March 10, 2008 through May 29, 2009, * * *
         [Aguirre] did knowingly transfer material, to wit: one or more
         photographs of a minor, to wit: Jane Doe, #6, age 14-15, New
         Riegel, Ohio. * * *

Feb. 24, 2010 Indictment, 3. The State presented Exhibits 6A, 6B, and 6C in

support of this count.           Exhibits 6A and 6B are medical images of the chest

showing the spine, ribs, and internal organs. There are shadows that are likely the

outline of the breast in 6A and what appears to be the underwire used in a bra in

6B. Exhibit 6C is a side view showing the spine, ribs, and internal organs. There

is a shadow of the breasts. None of these images, given that they are x-rays, are

lewd exhibitions and do not have a graphic focus on the genitals. Thus, the

images do not meet the statutory definition of nudity as used in R.C. 2907.323(A).

The evidence does not support a finding of guilty as to Count Six.

         {¶24} Count Seven of the indictment alleged as follows:



does not change the facts that need to be proven to convict of the offense, i.e. that the image is that of a
minor.

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Case Nos. 13-11-19 and 13-11-20


       On or about January 31, 2008, * * * [Aguirre] did knowingly
       transfer material, to wit: one or more photographs of a minor,
       to wit: Jane Doe, #7, age 12, Tiffin, Ohio. * * *

Feb. 24, 2010 Indictment, 4. The State presented Exhibits 7A and 7B in support

of this count. Both Exhibits show medical images focusing on the genitals of the

minor. The minor’s father testified as to the minor’s birthdate and that Aguirre did

not have permission to transfer the images for his personal use. Viewing the

evidence in a light most favorable to the State, the evidence is sufficient to support

a finding of guilty on Count Seven.

       {¶25} Count Eight of the indictment alleged as follows:

       On or about July 22, 2008 through December 1, 2008, * * *
       [Aguirre] did knowingly transfer material, to wit: one or more
       photographs of a minor, to wit: Jane Doe, #8, age 13, Tiffin,
       Ohio. * * *

Feb. 24, 2010 Indictment, 4. In support of this count, the State presented Exhibit

8. Exhibit 8 is a chest x-ray showing the spine, ribs, and internal organs. There is

a shadowy outline of a breast. This is neither a lewd exhibition nor a graphic

focus on the genitals. Thus, it does not meet the statutory requirements of R.C.

2907.323(A). The evidence is insufficient to support a conviction on Count Eight.

       {¶26} Count Nine of the indictment alleged as follows.

       On or about November 12, 2008 through September 8, 2009, * *
       * [Aguirre] did knowingly transfer material, to wit: one or more
       photographs of a minor, to wit: Jane Doe, #9, age 12, Fostoria,
       Ohio. * * *


                                        -19-
Case Nos. 13-11-19 and 13-11-20


Feb. 24, 2010 Indictment, 4. The State presented Exhibits 9A, 9B, 9C, 9D, 9E,

and 9F in support of this count. All of these images show the minor in various

states of undress. Although these images do not have a graphic focus on the

genitals, they may be considered a lewd exhibition. The minor is in the process of

undressing and her attire may be considered indecent.           The minor’s mother

testified as to the minor’s birthdate and that Aguirre did not have permission to

transfer these images for his personal use. Viewing the evidence in a light most

favorable to the State, the evidence is sufficient to support a finding of guilty as to

Count Nine.

       {¶27} Count Ten of the indictment alleged as follows.

       On or about January 15, 2008, * * * [Aguirre] did knowingly
       transfer material, to wit, one or more photographs of a minor, to
       wit, Jane Doe, #10, age 4, Tiffin, Ohio. * * *

Feb. 24, 2010 Indictment, 5. In support of this claim, the State presented Exhibit

10. Exhibit 10 is a medical image including a pelvic x-ray. There is a clear image

of the genitals in this photo. In addition, the father of the minor testified as to her

birthdate and that Aguirre lacked permission to transfer these images for his

personal use. Viewing the evidence in a light most favorable to the State, the

evidence is sufficient to support a finding of guilty on Count Ten.

       {¶28} As to Count Eleven, the indictment alleged as follows:

       On or about February 25, 2006 through April 23, 2008, * * *
       [Aguirre] did knowingly transfer material, to wit: one or more

                                         -20-
Case Nos. 13-11-19 and 13-11-20


       photographs of a minor, to wit: Jane Doe #11, age 8-10, Tiffin,
       Ohio. * * *

Feb. 24, 2010 Indictment, 5. In support of this claim, the State presented Exhibit

11. Exhibit 11 is a pelvic x-ray. The genitals are clearly the focus of this image.

In addition, the mother of the minor testified as to her birthdate and that Aguirre

lacked permission to transfer these images for his personal use. Viewing the

evidence in a light most favorable to the State, the evidence is sufficient to support

a finding of guilty on Count Eleven.

       {¶29} Finally, Count Twelve of the indictment alleged as follows.

       On or about July 24, 2009, * * * [Aguirre] did knowingly
       transfer material, to wit: one or more photographs of a minor,
       to wit: Jane Doe #12, age 15, Fostoria, Ohio. * * *

Feb. 24, 2010 Indictment, 6. The State presented Exhibit 12 in support of this

count. Exhibit 12 is a medical image in which the genitals are clearly visible. The

mother of the minor testified as to her birthdate and that Aguirre lacked

permission to transfer these images for his personal use. Viewing the evidence in

a light most favorable to the State, the evidence is sufficient to support a finding of

guilty on Count Twelve.

       {¶30} Having reviewed the record, the second assignment of error is

sustained in part and overruled in part.        The trial court properly overruled

Aguirre’s Criminal Rule 29 motion as to Counts Two, Three, Four, Five, Seven,

Nine, Ten, Eleven, and Twelve.         However, the evidence was insufficient to

                                         -21-
Case Nos. 13-11-19 and 13-11-20


support a conviction under R.C. 2907.323(A) for Counts One, Six, and Eight.

Since all of the convictions were ordered to be served concurrently, this ruling has

no effect on the sentence. “R.C. 2929.01(FF) defines a sentence as ‘the sanction

or combination of sanctions imposed by the sentencing court on an offender who

is convicted of or pleads guilty to an offense.’” State v. Saxon, 109 Ohio St.3d

176, 2006-Ohio-1245, ¶ 12.        In Saxon, the Ohio Supreme Court held that an

appellate court “may not modify, remand, or vacate the entire multiple-offense

sentence based upon an appealed error in the sentence for a single offense.” Id. at

syllabus. “No purpose can be served by forcing a sentencing judge to revisit

properly imposed, lawful sentences based upon an error in the sentence for a

separate offense.” Id. at ¶ 21. Here, nine of the twelve convictions were lawful.

Thus, there is no reason for the trial court to revisit those. Instead, this matter is

remanded for the trial court to vacate the convictions on counts one, six and eight,

which includes the sentences imposed. State v. Whitfield, 124 Ohio St.3d 319,

2010-Ohio-2, ¶ 12.

       {¶31} In his third and final assignment of error, Aguirre claims that the trial

court erred in calculating his jail time credit. This assignment of error applies to

both Case No. 13-11-19 and Case No. 13-11-20. Aguirre claims that the trial

court erred by not awarding him credit for all the time spent in Portage County




                                        -22-
Case Nos. 13-11-19 and 13-11-20


Jail, not just the time after he was indicted in Seneca County. R.C. 2967.191

states in pertinent part:

       The department of rehabilitation and correction shall reduce the
       stated prison term of a prisoner * * * by the total number of
       days that the prisoner was confined for any reason arising out of
       the offense for which the prisoner was convicted and sentenced,
       including confinement in lieu of bail while awaiting trial,
       confinement for examination to determine the prisoner’s
       competence to stand trial or sanity, and confinement while
       awaiting transportation to the place where the prisoner is to
       serve the prisoner’s prison term.

Aguirre argues that he was arrested in Portage County and charged there on the

exact same set of facts for which he was charged in Seneca County and is

therefore entitled to all time served. However, this court notes that in addition to

the illegal use of a minor in nudity oriented material and the numerous voyeurism

charges brought in Seneca County, Aguirre was also charged with various drug

offenses in Portage County. Thus, there were additional facts involved in the

Portage County case than in the Seneca County Case. A defendant is not entitled

to jail-time credit on facts which are separate and apart from those on which the

current sentence was based. State v. Lynn, 3rd Dist. No. 15-06-16, 2007-Ohio-

3344, ¶ 8. The third assignment of error is overruled.

       {¶32} The judgment of the Court of Common Pleas of Seneca County in

Appeal No. 13-11-19 is affirmed. The judgment of the Court of Common Pleas of




                                       -23-
Case Nos. 13-11-19 and 13-11-20


Seneca County in Appeal No. 13-11-20 is affirmed in part and reversed in part and

the matter is remanded for further proceedings in accord with this opinion.

                                           App. No. 13-11-19 Judgment Affirmed

                                   App. No. 13-11-20 Judgment Affirmed in Part,
                                          Reversed in Part and Cause Remanded

SHAW, P.J. and PRESTON, J., concur.

/jlr




                                       -24-
