[Cite as State v. Hosseinipour, 2014-Ohio-1090.]


                                        COURT OF APPEALS
                                    DELAWARE COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT



STATE OF OHIO                                      :   JUDGES:
                                                   :   Hon. W. Scott Gwin, P.J.
        Plaintiff-Appellee                         :   Hon. Sheila G. Farmer, J.
                                                   :   Hon. Patricia A. Delaney, J.
-vs-                                               :
                                                   :
MORTEZA HOSSEINIPOUR                               :   Case No. 13 CAA 05 0046
                                                   :
        Defendant-Appellant                        :   OPINION




CHARACTER OF PROCEEDING:                               Appeal from the Court of Common
                                                       Pleas, Case No. 12 CR I 02 0080




JUDGMENT:                                              Affirmed




DATE OF JUDGMENT:                                      March 18, 2014




APPEARANCES:

For Plaintiff-Appellee                                 For Defendant-Appellant

ERIC C. PENKAL                                         ELIZABETH N. GABA
140 North Sandusky Street                              1231 East Broad Street
Delaware, OH 43015                                     Columbus, OH 43205
Delaware County, Case No. 13 CAA 05 0046                                                  2

Farmer, J.

       {¶1}   On February 24, 2012, the Delaware County Grand Jury indicted

appellant, Morteza Hosseinipour, on three counts of unlawful sexual conduct with a

minor in violation of R.C. 2907.04, one count of rape in violation of R.C. 2907.02, and

six counts of illegal use of a minor in nudity oriented material or performance in violation

of R.C. 2907.323.

       {¶2}   On February 5, 2013, appellant entered Alford pleas to two counts of

attempted illegal use of a minor in nudity oriented material or performance in violation of

R.C. 2907.323(A)(1) and 2923.02. The remaining counts were nolled. By judgment

entry on sentence filed May 14, 2013, the trial court sentenced appellant to an

aggregate term of two years in prison, and classified him as a Tier II sex offender.

       {¶3}   Appellant filed an appeal and this matter is now before this court for

consideration. Assignments of error are as follows:

                                             I

       {¶4}   "THE TRIAL COURT ERRED TO THE PREJUDICE OF APPELLANT IN

DENYING APPELLANT'S MOTION TO DISMISS THESE COUNTS OF THE

INDICTMENT.      THE CHARGES ARE SO ILL-DEFINED THAT THE DEFENDANT

DOES NOT KNOW WHAT HE IS DEFENDING AGAINST, IN VIOLATION OF HIS 5TH

AND 6TH AMENDMENT RIGHTS AND THE STATUTES ARE VAGUE, OVERBROAD

AND UNCONSTITUTIONAL. IN THE EVENT THAT THIS COURT FINDS THAT THE

STATE DOES NOT HAVE TO PROVE THAT AN ELEMENT OF THE "NUDITY" MUST

REFER TO A "LEWD EXHIBITION OF THE GENITALS" (AS DEMANDED, FOR

EXAMPLE, IN STATE V. KERRIGAN, 168 OHIO APP.3D 455, 2006-OHIO-4279),
Delaware County, Case No. 13 CAA 05 0046                                     3


THEN THE STATUTES R.C. 2907.323(A)(1) AND (A)(3) ARE UNCONSTITUTIONAL

IN THEIR VAGUENESS AND OVERBREADTH."

                                       II

     {¶5}    "THE TRIAL COURT ERRED TO THE PREJUDICE OF APPELLANT

WHEN IT FOUND THE DEFENDANT-APPELLANT GUILTY OF THESE TWO

AMENDED COUNTS OF THE INDICTMENT WHEN SAID FINDINGS WERE NOT

SUPPORTED BY SUFFICIENT EVIDENCE, WERE AGAINST THE MANIFEST

WEIGHT OF THE EVIDENCE, AND THE TRIAL COURT APPLIED AN INCORRECT

LEGAL STANDARD IN EVALUATING THE EVIDENCE. HOLDING THESE PHOTOS

TO HAVE "LEWD CONTENT" AND ILLEGAL TO "RECKLESSLY POSSESS" OR

"RECKLESSLY TRANSFER", IS BOTH WRONG AND UNCONSTITUTIONAL. THIS

ACTION WAS IN VIOLATION OF APPELLANT'S 5TH AND 14TH AMENDMENT

RIGHTS,     AND   FURTHER   VIOLATED        HIS   RIGHTS   UNDER   THE   EQUAL

PROTECTION CLAUSE."

                                      III

     {¶6}    "THE TRIAL COUT ERRED TO THE PREJUDICE OF APPELLANT

WHEN IT PERMITTED THE SELECTIVE OR DISCRIMINATORY ENFORCEMENT OF

A PENAL STATUTE, IN VIOLATON OF THE EQUAL PROTECTION CLAUSE OF THE

FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AS WELL

AS THE DUE COURSE OF LAW PROVISION AND ARTICLE I SECTION 16 OF THE

OHIO CONSTITUTION. SEC. 2907.323(A)(1) IS UNCNSTITUTIONAL NOT JUST "ON

ITS FACE", BUT "AS APPLIED"."
Delaware County, Case No. 13 CAA 05 0046                                              4


                                          IV

      {¶7}   "THE TRIAL COURT ERRED TO THE PREJUDICE OF APPELLANT

WHEN IT DENIED HIS MOTION TO SUPPRESS THE EVIDENCE SEIZED DURING

THE SEARCH OF THE APPELLANT'S HOME AND SEARCH OF THE APPELLANT'S

COMPUTERS AND P.D.A. THE SEARCHES CONDUCTED EXCEEDED THE SCOPE

OF THE AUTHORITY GRANTED BY THE WARRANTS, THE WARRANTS WERE

OTHERWISE DEFECTIVE, AND THERE WAS NO CONSENT TO SEARCH. THE

SEARCHES VIOLATED THE DEFENDANT'S RIGHTS SECURED BY THE FOURTH

AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION AS

WELL AS ARTICLE I, SECTION 14, OF THE OHIO CONSTITUTION AND FURTHER

VIOLATED CRIMINAL RULE 41 AND R.C. 2933.23, 2933.24, AND 2933.25."

                                          V

      {¶8}   "THE TRIAL COURT ERRED TO THE PREJUDICE OF DEFENDANT BY

SENTENCING THE DEFENDANT TO 2 YEARS ON EACH F3, COMPLETELY

IGNORING THE P.S.I. THIS SENTENCE VIOLATED DEFENDANT'S RIGHTS UNDER

THE FIFTH, SIXTH, EIGHTH AND FOURTEENTH AMENDMENTS TO THE U.S.

CONSTITUTION AND ARTICLE I, §§1, 5, 9, 10, 16 AND 20 OF THE OHIO

CONSTITUTION."

                                           I

      {¶9}   Appellant claims the trial court erred in denying his motion to dismiss the

illegal use of a minor in nudity oriented material or performance counts because the

statute, R.C. 2907.323, is unconstitutionally vague and overbroad. We disagree.
Delaware County, Case No. 13 CAA 05 0046                                                 5


       {¶10} Appellant pled to two counts of attempted illegal use of a minor in nudity

oriented material or performance in violation of R.C. 2907.323(A)(1) and 2923.02(A)

which state the following, respectively:



              (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.

              (A) No person, purposely or knowingly, and when purpose or

       knowledge is sufficient culpability for the commission of an offense, shall
Delaware County, Case No. 13 CAA 05 0046                                              6


      engage in conduct that, if successful, would constitute or result in the

      offense.



      {¶11} Appellant's convictions for attempted illegal use of a minor in nudity

oriented material or performance stemmed from two photographs sent to him from a

fifteen year old girl.   One photograph depicted the girl topless, and the second

photograph depicted an exposed nipple. The core of appellant's argument is that the

holding in Osborne v. Ohio, 495 U.S. 103 (1990), in "defining" the phrase "state of

nudity," requires a "lewd exhibition of the genitals" and in this case, there is no such

showing in the two photographs. Appellant's Brief at 5. In our reading of Osborne, we

find this argument to be flawed.

      {¶12} In Osborne, the United States Supreme Court specifically found Ohio's

statute, R.C. 2907.323, passed constitutional muster on all issues of vagueness and

overbreadth, and was not an unconstitutional violation of the First Amendment. The

Osborne court did not review R.C. 2907.323(A)(1), the subsection appellant pled to, but

subsection (A)(3) which states the following:



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

             (3) Possess or view any material or performance that shows a

      minor who is not the person's child or ward in a state of nudity, unless one

      of the following applies:

             (a) The material or performance is sold, disseminated, displayed,

      possessed, controlled, brought or caused to be brought into this state, or
Delaware County, Case No. 13 CAA 05 0046                                                  7


       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 person knows that the parents, guardian, or custodian has

       consented in writing to the photographing or use of the minor in a state of

       nudity and to the manner in which the material or performance is used or

       transferred.



       {¶13} Both subsections refer to a "state of nudity."          Although we are only

concerned with a violation under R.C. 2907.323(A)(1), we find the Osborne case to be

definitive and binding upon the constitutional issues presented sub judice. In State v.

Graves, 184 Ohio App.3d 39, 2009-Ohio-974 (4th Dist.2009), ¶ 9, out brethren from the

Fourth District stated the following:



              Before we go further, we point out that both Young and Osborne

       involved R.C. 2907.323(A)(3), not subsection (A)(1). However, this fact

       makes no difference for purposes of our analysis.             This court has

       previously held that the same "lewd" or "graphic focus on the genitals" that

       both Supreme Courts applied to an (A)(3) offense applies equally to an

       (A)(1) offense. See State v. Walker (1999), 134 Ohio App.3d 89, 94, 730
Delaware County, Case No. 13 CAA 05 0046                                             8

     N.E.2d 419; State v. Steele (Aug. 21, 2001), Vinton App. No. 99CA530,

     2001 WL 898748.



     {¶14} The Osborne holding gives a green light to Ohio's statutory scheme:



           The Ohio statute, on its face, purports to prohibit the possession of

     "nude" photographs of minors. We have stated that depictions of nudity,

     without more, constitute protected expression. See Ferber [New York v.,

     458 U.S. 747], supra, at 765, n. 18, 102 S.Ct., at 3359, n. 18. Relying on

     this observation, Osborne argues that the statute as written is substantially

     overbroad. We are skeptical of this claim because, in light of the statute's

     exemptions and "proper purposes" provisions, the statute may not be

     substantially overbroad under our cases.***However that may be,

     Osborne's overbreadth challenge, in any event, fails because the statute,

     as construed by the Ohio Supreme Court on Osborne's direct appeal,

     plainly survives overbreadth scrutiny.    Under the Ohio Supreme Court

     reading, the statute prohibits "the possession or viewing of material or

     performance of a minor who is in a state of nudity, where such nudity

     constitutes a lewd exhibition or involves a graphic focus on the genitals,

     and where the person depicted is neither the child nor the ward of the

     person charged." 37 Ohio St.3d, at 252, 525 N.E.2d, at 1368.***By

     limiting the statute's operation in this manner, the Ohio Supreme Court

     avoided penalizing persons for viewing or possessing innocuous
Delaware County, Case No. 13 CAA 05 0046                                               9


       photographs of naked children. We have upheld similar language against

       overbreadth challenges in the past. In Ferber, we affirmed a conviction

       under a New York statute that made it a crime to promote the " 'lewd

       exhibition of [a child's] genitals.' " 458 U.S., at 751, 102 S.Ct., at 3351.

       We noted that "[t]he term 'lewd exhibition of the genitals' is not unknown in

       this area and, indeed, was given in Miller [v. California, 413 U.S. 15, 93

       S.Ct. 2607, 37 L.Ed.2d 419 (1973),] as an example of a permissible

       regulation." Id., at 765, 102 S.Ct., at 3359.



Osborne, 495 U.S. 103 at 112-114.



       {¶15} Upon review, we find R.C. 2907.323(A)(1) is constitutional, and the

prohibited activity bans lewd exhibition with no necessity to establish the exhibition of

genitals.

       {¶16} Assignment of Error I is denied.

                                             II

       {¶17} Appellant claims his convictions for attempted illegal use of a minor in

nudity oriented material or performance in violation of R.C. 2907.323(A)(1) and 2923.02,

as cited above, were against the manifest weight of the evidence as the two

photographs did not meet the definition of child pornography. We disagree.

       {¶18} On review for manifest weight, a reviewing court is to examine the entire

record, weigh the evidence and all reasonable inferences, consider the credibility of

witnesses and determine "whether in resolving conflicts in the evidence, the jury clearly
Delaware County, Case No. 13 CAA 05 0046                                                 10


lost its way and created such a manifest miscarriage of justice that the conviction must

be reversed and a new trial ordered." State v. Martin, 20 Ohio App.3d 172, 175 (1st

Dist.1983). See also, State v. Thompkins, 78 Ohio St.3d 380, 1997-Ohio-52. The

granting of a new trial "should be exercised only in the exceptional case in which the

evidence weighs heavily against the conviction." Martin at 175.

       {¶19} It is appellant's position that the two photographs do not show sexual

activity or a lewd exhibition of genitals. Appellant again argues there must be proof of

"lewd exhibition of genitals" when the statute does not require such. It is clear that

Osborne found the statute constitutional as written, including the mens rea of

recklessness, and dispelling the argument that there are no innocent photographs of

childhood nudity i.e., "a family friend's possession of an innocuous picture of an

unclothed infant." Osborne, 495 U.S. 103 at 115 and fn. 11.

       {¶20} The gravamen of this assignment of error is whether the photographs

depict nudity in a lewd exhibition.

       {¶21} The photographs, State's Exhibit I, were presented to this court under

seal. It is clear the photographs depict a partially clothed girl with her breasts exposed.

       {¶22} R.C. 2907.01(H) defines "nudity" as: "the showing, representation, or

depiction of human male or female genitals, pubic area, or buttocks with less than a full,

opaque covering, or of a female breast with less than a full, opaque covering of any

portion thereof below the top of the nipple, or of covered male genitals in a discernibly

turgid state."

       {¶23} We conclude the photographs depict nudity. As to a lewd exhibition, the

subject is posed; therefore, the photographs are an exhibition. The posed partially
Delaware County, Case No. 13 CAA 05 0046                                               11


clothed subject is not in a normally posed fashion. The poses are inherently sexual as

the subject arched her back and fully exposed her breasts. These photographs are

similar to images portrayed in "Playboy" whose main purpose is to exhibit sexual

behavior that approaches sexual innuendo.

      {¶24} Upon review, we find the convictions for attempted illegal use of a minor in

nudity oriented material or performance were not against the manifest weight of the

evidence.

      {¶25} Assignment of Error II is denied.

                                            III

      {¶26} Appellant claims he was selectively prosecuted. We disagree.

      {¶27} As the state points out, this issue was never raised to the trial court and

therefore, there is no evidence pro or con on the issue of selective or discriminatory

prosecution.

      {¶28} An error not raised in the trial court must be plain error for an appellate

court to reverse. State v. Long, 53 Ohio St.2d 91 (1978); Crim.R. 52(B). In order to

prevail under a plain error analysis, appellant bears the burden of demonstrating that

the outcome of the trial clearly would have been different but for the error. Long. Notice

of plain error "is to be taken with the utmost caution, under exceptional circumstances

and only to prevent a manifest miscarriage of justice." Id. at paragraph three of the

syllabus.

      {¶29} In State v. Flynt, 63 Ohio St.2d 132, 134 (1980), the Supreme Court of

Ohio explained the following:
Delaware County, Case No. 13 CAA 05 0046                                            12


             The conscious exercise of some selectivity in enforcement is not in

      itself, however, a violation of the United States Constitution. Oyler v.

      Boles (1962), 368 U.S. 448, 456, 82 S.Ct. 501, 505, 7 L.Ed.2d 446. In

      order for selective enforcement to reach the level of unconstitutional

      discrimination the discrimination must be "intentional or purposeful."

      Snowden v. Hughes (1944), 321 U.S. 1, 8, 64 S.Ct. 397, 401, 88 L.Ed.

      497. This concept of "intentional or purposeful discrimination" was

      explained in United States v. Berrios (C.A.2, 1974), 501 F.2d 1207,

      1211, as follows:

             "To support a defense of selective or discriminatory prosecution, a

      defendant bears the heavy burden of establishing, at least prima facie, (1)

      that, while others similarly situated have not generally been proceeded

      against because of conduct of the type forming the basis of the charge

      against him, he has been singled out for prosecution, and (2) that the

      government's discriminatory selection of him for prosecution has been

      invidious or in bad faith, i.e., based upon such impermissible

      considerations as race, religion, or the desire to prevent his exercise of

      constitutional rights.   These two essential elements are sometimes

      referred to as 'intentional and purposeful discrimination.' " This test has

      been recognized by numerous courts. (Citations omitted.)



      {¶30} With no record established as to prosecutions of R.C. 2907.323 in the

county, we are unable to address even the plain error standard.
Delaware County, Case No. 13 CAA 05 0046                                                     13


       {¶31} Again, in this assignment of error, appellant harkens back to the same

arguments as to vagueness and overbreadth in Assignments of Error I and II.

       {¶32} Based upon our analysis of the statute, the case law, and the evidence,

we find the arguments hereunder to be unsupported. Appellant argues it was harmless

to merely open an email and view the photographs. However, appellant did not only

view the photographs, but saved and stored them on his computer. Appellant's actions

fly in the face of his claim of innocent perusal.

       {¶33} Upon review, we find appellant was not selectively prosecuted.

       {¶34} Assignment of Error III is denied.

                                              IV

       {¶35} Appellant claims the trial court erred in denying his motion to suppress as

the search warrants executed to seize his property and search the contents of said

property lacked probable cause, lacked a nexus between the alleged criminal activity

and the requested searches, were overbroad, and were the result of an illegal search.

We disagree.

       {¶36} There are three methods of challenging on appeal a trial court's ruling on a

motion to suppress. First, an appellant may challenge the trial court's findings of fact.

In reviewing a challenge of this nature, an appellate court must determine whether said

findings of fact are against the manifest weight of the evidence. State v. Fanning, 1

Ohio St.3d 19 (1982); State v. Klein, 73 Ohio App.3d 486 (4th Dist.1991); State v.

Guysinger, 86 Ohio App.3d 592 (4th Dist.1993). Second, an appellant may argue the

trial court failed to apply the appropriate test or correct law to the findings of fact. In that

case, an appellate court can reverse the trial court for committing an error of law. State
Delaware County, Case No. 13 CAA 05 0046                                                 14

v. Williams, 86 Ohio App.3d 37 (4th Dist.1993).         Finally, assuming the trial court's

findings of fact are not against the manifest weight of the evidence and it has properly

identified the law to be applied, an appellant may argue the trial court has incorrectly

decided the ultimate or final issue raised in the motion to suppress. When reviewing

this type of claim, an appellate court must independently determine, without deference

to the trial court's conclusion, whether the facts meet the appropriate legal standard in

any given case. State v. Curry, 95 Ohio App.3d 93 (8th Dist.1994); State v. Claytor, 85

Ohio App.3d 623 (4th Dist.1993); Guysinger. As the United States Supreme Court held

in Ornelas v. U.S., 517 U.S. 690, 116 S.Ct. 1657, 1663 (1996), "…as a general matter

determinations of reasonable suspicion and probable cause should be reviewed de

novo on appeal."

         {¶37} As explained in State v. Jordan, 101 Ohio St.3d 216, 2004-Ohio-783, ¶

37-38:



                In Illinois v. Gates (1983), 462 U.S. 213, 238, 103 S.Ct. 2317, 76

         L.Ed.2d 527, the United States Supreme Court reviewed the sufficiency of

         probable cause in an affidavit requesting a search warrant. The Supreme

         Court held: "The 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, including the 'veracity' and 'basis of

         knowledge' of persons supplying hearsay information, there is a fair

         probability that contraband or evidence of a crime will be found in a

         particular place." Accord State v. George (1989), 45 Ohio St.3d 325, 544
Delaware County, Case No. 13 CAA 05 0046                                              15

      N.E.2d 640, paragraph one of the syllabus. In Gates, 462 U.S. at 235,

      103 S.Ct. 2317, 76 L.Ed.2d 527, the court elaborated that the standard of

      probable cause is only the probability, and not a prima facie showing, of

      criminal activity.

             Moreover, "[i]n conducting any after-the-fact scrutiny of an affidavit

      submitted in support of a search warrant, trial and appellate courts should

      accord great deference to the magistrate's determination of probable

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

      favor of upholding the warrant." George, 45 Ohio St.3d 325, 544 N.E.2d

      640, paragraph two of the syllabus, following Illinois v. Gates.



      {¶38} Two search warrants were issued in this case; the first on February 16,

2010, and the second on February 18, 2010.

      {¶39} The February 16, 2010 search warrant issued by Judge David Sunderman

included the following language in pertinent part:



             A search of said person, building, place, or vehicle, will be executed

      within three (3) days after issuance of this warrant, the said premises

      being in the County of Delaware, Ohio, aforesaid, and diligently search for

      said goods, chattels, or articles, to wit, pursuant to 2933.21 of the Ohio

      Revised Code, and Rule 41 of the Ohio Rules of Criminal Procedure,

      evidence of the commission of the criminal offense of Rape, section

      2907.02 of the Ohio Revised Code, Gross Sexual Imposition section
Delaware County, Case No. 13 CAA 05 0046                                            16


      2907.05 of the Ohio Revised Code and Unlawful Sexual Conduct involving

      a minor, section 2907.04 of the Ohio Revised Code; all indicia,

      documents, and records showing ownership or rights of possession of the

      residence of Morteza Hosseinipour 8094 Trial Lake Drive, Liberty

      Township, Powell, Ohio 43065.

             Any or all of the above-described records may be stored by means

      of computerized information system(s) computers.

             You are further commanded to bring the same or any part thereof,

      found on such search, forthwith before me, or some other judge of this

      court having cognizance thereof, to be disposed of and dealt with

      according to law. In lieu, therefore, you are authorized to retain such

      seized property and evidence in the property room of the Powell Police

      Department.



      {¶40} The search warrant affidavit of Detective Darren Smith of the Powell

Police Department that was presented to Judge Sunderman included a recitation of a

report made by the victim to another police officer in the Powell Police Department,

Officer Boruchowitz (Report No. 09-1285). This report included descriptions of various

non-consensual sexual activities between appellant and the victim, and numerous

emails the victim received from appellant. The affidavit explained that the emails were

tracked from appellant to the victim via a subpoena to Time Warner Cable Company.

Time Warner records confirmed the emails were sent to the victim from accounts

belonging to appellant.
Delaware County, Case No. 13 CAA 05 0046                                               17


       {¶41} Standing alone, on its face, the affidavit for the first search warrant

established a nexus between the alleged criminal activity and the seizure of

"computerized information system(s) computers" because of the emails appellant had

sent to the victim, the victim's assertions of unlawful sexual conduct, and the records of

Time Warner. The issuance of the first warrant met the parameters of probable cause

and was not overbroad.

       {¶42} The second search warrant dated February 18, 2010 requested the

seizure of specific information stored within the computers seized during the execution

of the first search warrant:



              A search of said person, building, place, or vehicle, will be executed

       within three (3) days after issuance of this warrant, the said premises

       being in the County of Delaware, Ohio, aforesaid, and diligently search for

       said goods, chattels, or articles, to wit, pursuant to 2933.21 of the Ohio

       Revised Code, and Rule 41 of the Ohio Rules of Criminal Procedure,

       evidence of the commission of the criminal offense of Rape, section

       2907.02 of the Ohio Revised Code, Gross Sexual Imposition section

       2907.05 of the Ohio Revised Code and Unlawful Sexual Conduct involving

       a minor, section 2907.04 of the Ohio Revised Code; to wit: information

       that might be stored in the following items, Dell 830 computer S/N#

       588SF31, Sony Clie S/N# 28936031-4041721, Dell Laptop S/N#

       5YQTF31, and a H.P. Laptop S/N# CND9041DSP.
Delaware County, Case No. 13 CAA 05 0046                                              18


             You are further commanded to bring the same or any part thereof,

      found on such search, forthwith before me, or some other judge of this

      court having cognizance thereof, to be disposed of and dealt with

      according to law. In lieu, therefore, you are authorized to retain such

      seized property and evidence in the property room of the Powell Police

      Department.



      {¶43} The return of the first search warrant included an inventory sheet listing

the specific computers named in the second search warrant.          The second search

warrant was not overbroad.

      {¶44} The crux of appellant's argument relative to the second search warrant is

that somehow appellant's computer files were opened illegally without a search warrant.

Appellant's Brief at 23 and 25.

      {¶45} Although there is no definitive ruling on the record or in the docket as to

the trial court's decision regarding the motion to suppress and this issue, during the

suppression hearing, the trial court stated appellant had failed to establish evidence of

such unlawful action. May 4, 2012 T. at 124-128.

      {¶46} In issuing the second search warrant, the trial court granted an extension

of the three day execution rule under Crim.R. 41(C)(2). May 4, 2012 T. at 88. The

return of the second search warrant indicates the information on the computers was not

obtained by an FBI specialist until April 2, 2010. The salient fact absent and ignored by

appellant is that the computers were already in police possession via the first search

warrant as evidenced by the inventory sheet attached to the return of said warrant. Any
Delaware County, Case No. 13 CAA 05 0046                                              19


delay in actually retrieving the information from the computers did not prejudice

appellant nor infringe upon his Fourth Amendment rights.

       {¶47} Appellant also claims that under R.C. 2933.53, Judge Sunderman did not

have the authority to issue the second search warrant as he was a municipal court

judge and not a court of common pleas judge.            R.C. 2933.53 applies only to

"interception" warrants and not to the search of confiscated computers' hard drives

and/or emails.

       {¶48} Upon review, we find the trial court did not err in denying appellant's

motion to suppress.

       {¶49} Assignment of Error IV is denied.

                                              V

       {¶50} Appellant claims the trial court erred in sentencing him to two years on

each count, to be served concurrently. We disagree.

       {¶51} Appellant argues the trial court completely disregarded the presentence

investigation report as he had no criminal record and there was no evidence of violence.

Therefore, the sentences were unreasonable and disproportional.

       {¶52} Appellant was convicted of two counts of attempted illegal use of a minor

in nudity oriented material or performance, felonies of the third degree. Pursuant to

R.C. 2929.14(A)(3)(b), felonies of the third degree shall be punishable by "nine, twelve,

eighteen, twenty-four, thirty, or thirty-six months."

       {¶53} In sentencing appellant to twenty-four months on each count, the trial

court considered the presentence investigation report among other things, and found

appellant did not show remorse, was in a position of trust with the victim who was a
Delaware County, Case No. 13 CAA 05 0046                                               20


minor, and was fifty-three years old with a legal education and was "very bright."

Judgment Entry on Sentence filed May 14, 2013. The trial court weighed all of the

factors before it and sentenced appellant to less than the maximum.

      {¶54} Appellant took advantage of his position of trust with the victim. February

5, 2012 T. at 46. He was aware that the victim was fifteen years old as he had attended

her fifteenth birthday party a few months prior to the sending of the photographs. Id. at

26, 29. Appellant saved the photographs and transferred them to various computers.

Id. at 25, 27-28. A review of the presentence investigation report confirms these facts.

      {¶55} Upon review, we find the sentences were not contrary to law, and were

not an abuse of discretion. R.C. 2953.08(G)(2); State v. Kalish, 120 Ohio St.3d 23,

2008-Ohio-4912; Blakemore v. Blakemore, 5 Ohio St.3d 217 (1983).

      {¶56} Assignment of Error V is denied.
Delaware County, Case No. 13 CAA 05 0046                                      21


      {¶57} The judgment of the Court of Common Pleas of Delaware County, Ohio is

hereby affirmed.

By Farmer, J.

Gwin, PJ. and

Delaney, J. concur.




SGF/sg 131
