[Cite as State v. Ross, 2020-Ohio-4109.]


                                    IN THE COURT OF APPEALS

                                ELEVENTH APPELLATE DISTRICT

                                           LAKE COUNTY, OHIO


STATE OF OHIO,                                      :      OPINION

                 Plaintiff-Appellee,                :
                                                           CASE NO. 2020-L-013
        - vs -                                      :

STEVEN A. ROSS,                                     :

                 Defendant-Appellant.               :


Criminal Appeal from the Lake County Court of Common Pleas, Case No. 2019 CR
000454.

Judgment: Affirmed.


Charles E. Coulson, Lake County Prosecutor, and Jennifer A. McGee, Assistant
Prosecutor, Lake County Administration Building, 105 Main Street, P.O. Box 490,
Painesville, OH 44077 (For Plaintiff-Appellee).

Vanessa R. Clapp, Lake County Public Defender, and Melissa A. Blake, Assistant
Public Defender, 125 East Erie Street, Painesville, OH 44077 (For Defendant-
Appellant).



CYNTHIA WESTCOTT RICE, J.

        {¶1}     Appellant, Steven A. Ross, appeals from the judgment of the Lake County

Court of Common Pleas. At issue is whether the trial court erred in denying his motion

to suppress evidence; whether counsel was ineffective for failing to challenge a search

warrant; and whether the trial court erred in imposing consecutive sentences for

appellant’s plea of no contest to four counts of felony-five voyeurism. We affirm.
      {¶2}   On October 15, 2018, the Chief Investigator for the Lake County

Prosecutor’s Office, Joseph Matteo, was contacted by Ja.S., who reported discovering

evidence that appellant, her ex-boyfriend of some ten years, had secretly videotaped

her minor daughter, Jo.S., in a state of nudity. Ja.S. stated she found a thumb drive in

her home, which, among various files belonging to appellant, included a photograph of

Jo.S. sunbathing. She became suspicious; meanwhile, Ja.S. was having difficulty with

a laptop she owned and had a friend, Mr. Lewis Sharaba, address the problems. Ja.S.

also asked Mr. Sharaba to examine the thumb drive; he did and found various deleted

files, which he was able to retrieve and transfer to a second thumb drive, which was his

property.

      {¶3}   Ja.S advised Investigator Matteo that she viewed the videos transferred

by Mr. Sharaba and observed appellant setting up and hiding a recording device in their

bathroom; Jo.S. entering the bathroom and undressing for a shower. On October 24,

2018, Ja.S. met with the investigator and provided him with a hard-drive, which

belonged to appellant, as well as the original thumb drive and the second thumb drive

which contained the retrieved videos. After viewing the videos, Investigator Matteo

confirmed Ja.S.’ claims.

      {¶4}   Several days later, the investigator turned the items over to Kirkland

Police Department; after obtaining statements from Ja.S. and Mr. Sharaba, Kirtland

officers acquired a search warrant authorizing the search of the original thumb drive and

the hard drive. After securing the warrant, the evidence was submitted to forensic

examiner Rick Warner; Mr. Warner was able to recover four video files from appellant’s




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thumb drive which depicted appellant recording Jo.S. in a state of nudity when she was

between the ages of 13 and 16 years old.

      {¶5}   Appellant was indicted on four counts of voyeurism, felonies of the fifth

degree, in violation of R.C. 2907.08(C).        He waived his right to be present at

arraignment and the trial court entered pleas of “not guilty” on his behalf. A motion to

suppress evidence was filed seeking to exclude all evidence that formed the basis of

the charges in the indictment. After a hearing, the motion was overruled. Appellant

then withdrew his pleas of “not guilty” and entered pleas of “no contest” to the charges

in the indictment. Prior to sentencing, appellant violated the conditions of his bond by

testing positive for cocaine. Bond was revoked, a warrant was issued for his arrest, and

he was later apprehended in the state of Georgia. Appellant was eventually sentenced

to nine months imprisonment on each count, to be served consecutively to one another,

for an aggregate term of 36 months. Appellant was additionally classified a Tier II Sex

Offender and notified of the registration requirements. This appeal follows.

      {¶6}   For his first assignment of error, appellant asserts:

      {¶7}   “The trial court erred by denying the defendant-appellant’s motion to

suppress in violation of his due process rights and rights against unreasonable search

and seizure as guaranteed by the Fourth and Fourteenth Amendments to the United

States Constitution and Article I, Sections 10 and 14 of the Ohio Constitution.”

      {¶8}   Appellant asserts that the trial court erred in denying his motion to

suppress because, in his view, the evidence was obtained from a warrantless search in

violation of the Fourth Amendment. Specifically, he maintains his constitutional rights

were violated when the investigator and Kirtland police viewed the copy of the videos




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transferred from the original by Mr. Sharaba, without a warrant and without his consent.

He asserts the content of the material transferred was his property in which he had a

reasonable expectation of privacy. We do not agree.

        {¶9}      “‘Appellate review of a motion to suppress presents a mixed question of

law and fact. When considering a motion to suppress, the trial court assumes the role of

trier of fact and is therefore in the best position to resolve factual questions and evaluate

the credibility of witnesses.’”        State v. Freshwater, 11th Dist. Lake No. 2018-L-

117, 2019-Ohio-2968, ¶4, quoting State v. Burnside, 100 Ohio St.3d 152, 2003-Ohio-

5372, ¶8. “‘Consequently, an appellate court must accept the trial court’s findings of fact

if they are supported by competent, credible evidence. Accepting these facts as true,

the appellate court must then independently determine, without deference to the

conclusion of the trial court, whether the facts satisfy the applicable legal

standard.’” Burnside, supra, citing State v. Fanning, 1 Ohio St.3d 19 (1982).

        {¶10} The Fourth Amendment’s proscriptions on searches and seizures are

inapplicable to private action. United States v. Jacobsen, 466 U.S. 109, 113-14, (1984).

The protections of the Fourth Amendment are “wholly inapplicable ‘to a search or

seizure, even an unreasonable one, effected by a private individual not acting as an

agent of the Government or with the participation or knowledge of any governmental

official.’” Id.   at   113   quoting    Walter   v. United   States, 447   U.S.   649,   662

(1980) (BLACKMUN, J., dissenting). Further, “[o]nce frustration of the original

expectation of privacy occurs, the Fourth Amendment does not prohibit governmental

use of the now-nonprivate information.” Id. at 117. Rather, the Fourth Amendment “is

implicated only if the authorities use information with respect to which the expectation of




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privacy has not already been frustrated.” Id. Accordingly, any “additional invasions of * *

* privacy by the government agent must be tested by the degree to which they exceed[ ]

the scope of the private search.” Id. at 115.

        {¶11} In this case, the frustration of appellant’s original (arguable) expectation of

privacy, occurred when Ja.S. and Mr. Sharaba viewed the videos subsequent to Mr.

Sharaba’s retrieval of the deleted files.1 Neither Investigator Matteo nor the Kirtland

police exceeded the scope of the private searches of Ja.S. or Mr. Sharaba. The pre-

warrant governmental searches included only the videos transferred by Mr. Sharaba, a

private party, onto his private property, a second thumb drive, which had been

previously viewed by private parties.             Thus, appellant’s argument must fail for two

reasons: (1) the evidence was submitted to authorities by a private party not acting as

an agent or extension of the government and (2) the pre-warrant evidence viewed by

police did not exceed that viewed by the private parties and thus any reasonable

expectation of privacy in that evidence had been frustrated.

        {¶12} Moreover, even if Ja.S. or Mr. Sharaba engaged in some arguable illicit

conduct (and there is nothing in the record to suggest this occurred), the exclusionary

rule was designed to remedy unconstitutional conduct by state actors. See Michigan v.

Tucker, 417 U.S. 433, 446 (1974), citing United States v. Calandra, 414 U.S. 338, 347

(1974).     “The rule is calculated to prevent, not to repair. Its purpose is to deter - to

compel respect for the constitutional guaranty in the only effectively available way - by

removing the incentive to disregard it.” Id. citing Elkins v. United States, 364 U.S. 206,

1. We parenthetically note that appellant’s expectation of privacy in the thumb drive was “arguable”
because the state asserted, at the hearing, the thumb drive was legally abandoned due to appellant’s
failure to retrieve the item after moving out and, therefore, he had no reasonable expectation of privacy in
the contents he left behind in the residence. Because we decide this matter on different grounds, we
need not address the legal merit to the state’s abandonment argument.


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217 (1960).     The United States Supreme Court has flatly stated that the Fourth

Amendment’s “origin and history clearly show that it was intended as a restraint upon

the activities of sovereign authority, and was not intended to be a limitation upon other

than governmental agencies.” Burdeau v. McDowell, 256 U.S. 465, 475 (1921).

Accordingly, the remedy of exclusion would not apply in this instance because the pre-

warrant evidence originated with and was submitted to authorities by a private party.

       {¶13} Appellant’s first assignment of error lacks merit.

       {¶14} Appellant’s second assignment of error provides:

       {¶15} “The defendant-appellant’s constitutional rights to due process and a fair

trial under the Fifth, Sixth and Fourteenth Amendments to the United States Constitution

and Article I, Sections 10 and 16 of the Ohio Constitution were prejudiced by the

ineffective assistance of trial counsel.”

       {¶16} Under his second assignment of error, appellant asserts trial counsel was

ineffective for failing to challenge the validity of the search warrant obtained by law

enforcement authorizing the search of his electronic storage devices. Appellant

specifically contends that Ja.S. was a biased party in the investigation and

consequently, if the evidence gleaned from the second thumb drive were disregarded,

the trial court could not rely upon her allegations to support probable cause to issue the

warrant.

       {¶17} Initially, counsel challenged the evidence obtained not only from the

second thumb drive, but also that obtained from the first thumb drive; the latter,

however, was obtained after a warrant was issued.         While counsel did not directly

challenge the sufficiency of the search warrant, his motion indirectly touches on the




                                            6
point. Moreover, after the hearing, the trial court made the following observations from

the bench:

       {¶18} In this case then the police reviewed and looked at the files that
             were on thumb drive two, which is the duplication, a copy of the
             files that were on thumb drive one. And that added, provided
             additional probable cause in the view of the officers, investigators,
             for the issuance of the search warrant for thumb drive one which is
             all we’re concerned about here. But even if we didn’t have that,
             there was sufficient probable cause for the issuance of a search
             warrant for thumb drive one.

       {¶19} Because counsel challenged all evidence and the trial court ultimately

ruled there was sufficient probable cause (regardless of whether the materials from

thumb-drive two was not considered), the validity of the warrant was a matter the court

considered. In this respect, counsel cannot be deemed ineffective for failing to raise a

point the court specifically addressed.       We shall nevertheless address appellant’s

ineffectiveness argument.

       {¶20} For appellant to succeed on his claim of ineffective assistance of counsel,

he must show that (1) his counsel's performance was deficient, and (2) that he was

prejudiced by his counsel’s deficient performance. State v. Bradley, 42 Ohio St.3d 136,

141 (1989).     When considering whether counsel’s performance was deficient, we

presume his or her conduct was within the range of reasonable professional assistance.

Id. at 142. To show prejudice, appellant must demonstrate a reasonable probability that

the result of the trial would have been different, but for his counsel’s errors. Id. at 143.

       {¶21} Ordinarily, when considering whether a search warrant is premised upon

probable cause, a magistrate or judge must “‘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



                                              7
fair probability that contraband or evidence of a crime will be found in a particular

place.’” State v. George, 45 Ohio St.3d 325 (1989), paragraph one of the syllabus,

quoting Illinois v. Gates, 462 U.S. 213, 238-39 (1983). By contrast, in reviewing the

sufficiency of probable cause of a search warrant, an appellate court must not substitute

its judgment for that of the magistrate, but reviews the warrant “simply to ensure that the

magistrate had a substantial basis for concluding that probable cause existed,”

according “great deference to the magistrate’s determination of probable cause,” and

resolving “doubtful or marginal cases * * * in favor of upholding the warrant.” George,

supra, at paragraph two of the syllabus.

       {¶22} Probable     cause   means     “less   than   evidence   than   would   justify

condemnation,” so that only the “‘probability, and not a prima facie showing, of criminal

activity is the standard of probable cause.’” Id. at 329, quoting Spinelli v. United States,

393 U.S. 410, 419 (1969).

       {¶23} In this matter, because counsel did not challenge the warrant, the affidavit

upon which it was premised and issued is not in our record. Nevertheless, the affiant,

Officer Cassia Phillips of the Kirkland Police Department offered testimony at the

suppression hearing regarding her factual basis for seeking the warrant. In particular,

she testified she received information regarding Ja.S’ allegations as well as the original

thumb drive, the second thumb drive which contained the retrieved material from the

first, and the hard drive. She testified she viewed the videos on the second thumb drive

with Jo.S. who confirmed the male in the videos was appellant and she was the minor

female in the videos. After this meeting, Officer Phillips testified she forwarded all three




                                             8
items to the forensic examiner, who requested a search warrant for the first thumb drive

and the hard drive.

       {¶24} Appellant’s challenge to the search warrant is based upon Ja.S’ purported

bias as his ex-inamorata. Regardless of any bias Ja.S. may have harbored toward

appellant, we need not speculate on the impact of these feelings because doing so

would require this court to omit consideration of the video evidence we have already

deemed admissible.      Because we conclude the second thumb drive was neither

searched nor seized by a governmental agent and appellant had no reasonable

expectation of privacy in the same, it, unto itself, provided sufficient probable cause for

the trial court to issue the warrant.     Hence, appellant can show neither deficient

performance nor prejudice for counsel’s failure to challenge the sufficiency of probable

cause supporting the trial court’s issuance of the warrant.

       {¶25} Appellant’s second assignment of error lacks merit.

       {¶26} For his third assigned error, appellant argues:

       {¶27} “The trial court erred by sentencing the defendant-appellant to individual,

prison terms of nine months on each count to be served consecutively, as the trial

court’s findings with respect to R.C. 2929.14 were unsupported by the record and thus

contrary to law.”

       {¶28} Appellant does not argue the trial court failed to make the necessary

statutory findings; rather, he challenges the basis of the trial court’s findings supporting

its imposition of consecutive sentences. We review consecutive sentences imposed

pursuant to R.C. 2929.14(C)(4) under R.C. 2953.08(G)(2), which states:




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      {¶29} The court hearing an appeal under division (A), (B), or (C) of this
            section shall review the record, including the findings underlying the
            sentence or modification given by the sentencing court.

      {¶30} The appellate court may increase, reduce, or otherwise modify a
            sentence that is appealed under this section or may vacate the
            sentence and remand the matter to the sentencing court for
            resentencing. The appellate court’s standard for review is not
            whether the sentencing court abused its discretion. The appellate
            court may take any action authorized by this division if it clearly and
            convincingly finds either of the following:

      {¶31} (a) That the record does not support the sentencing court’s findings
            under     division (B) or (D)  of   section    2929.13,      division
            (B)(2)(e) or (C)(4) of section 2929.14, or division (I) of section
            2929.20 of the Revised Code, whichever, if any, is relevant;

      {¶32} (b) That the sentence is otherwise contrary to law.

      {¶33} Appellate courts “‘may vacate or modify any sentence that is not clearly

and convincingly contrary to law’” only when the appellate court clearly and convincingly

finds that the record does not support the sentence. State v. Wilson, 11th Dist. Lake No.

2017-L-028, 2017-Ohio-7127, ¶8, quoting Marcum, supra.

      {¶34} Further, R.C.    2929.14(C)(4) provides,   in   relevant   part,   as   follows

regarding consecutive felony sentences:

      {¶35} If multiple prison terms are imposed on an offender for convictions
            of multiple offenses, the court may require the offender to serve the
            prison terms consecutively if the court finds that the consecutive
            service is necessary to protect the public from future crime or to
            punish the offender and that consecutive sentences are not
            disproportionate to the seriousness of the offender’s conduct and to
            the danger the offender poses to the public, and if the court also
            finds any of the following:

      {¶36} (a) The offender committed one or more of the multiple offenses
            while the offender was awaiting trial or sentencing, was under a
            sanction imposed pursuant to section 2929.16, 2929.17, or 2929.18
            of the Revised Code, or was under post-release control for a prior
            offense.




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       {¶37} (b) At least two of the multiple offenses were committed as part of
             one or more courses of conduct, and the harm caused by two or
             more of the multiple offenses so committed was so great or unusual
             that no single prison term for any of the offenses committed as part
             of any of the courses of conduct adequately reflects the
             seriousness of the offender’s conduct.

       {¶38} (c) The offender’s history of criminal conduct demonstrates
             that consecutive sentences are necessary to protect the public from
             future crime by the offender. R.C. 2929.14(C)(4).

       {¶39} At the sentencing hearing, the trial court made the following findings:

       {¶40} The court * * * finds that consecutive service is necessary in this
             case to protect the public from future crime, and to punish the
             offender. It’s not disproportionate to the seriousness of his conduct
             and to the danger he poses to the public and the court finds first
             that at least two of the multiple offenses were committed as a part
             of one or more courses of conduct and the harm that was caused
             by two or more of these multiple offenses so committed was so
             great or unusual that no single prison term for any of the offenses
             committed as a part of any other courses of conduct adequately
             reflects the seriousness of his conduct and also his history of
             criminal conduct demonstrates consecutive sentences are
             necessary to protect the public from future crime.

       {¶41} Again, when I talk about his history of criminal conduct, I recognize
             that there’s no - - not a lengthy history. The defendant has two
             prior convictions and one of them is a disorderly conduct. But that
             other conviction is for the same conduct and I find that that history
             warrants consecutive sentence and quite frankly, there were four
             separate acts here. And that’s something the court takes into
             consideration as well. Each of these are separate acts and they
             should be punished separately.

       {¶42} Clearly, the trial court met its statutory burden of listing the findings

justifying consecutive sentences.     Furthermore, its explication regarding appellant’s

criminal history is sufficient to support its findings under R.C. 2929.14(C)(4)(c). Further,

the trial court emphasized that it considered the statement of Jo.S., which provided an

articulate and detailed account of the harm appellant’s conduct caused her; the

statement, accordingly, provided more than an adequate foundation to support the



                                            11
court’s R.C. 2929.14(C)(4)(a) finding. Appellant, however, takes issue with the court’s

finding that the sentences were not disproportionate to the danger he poses to the

public; he further asserts consecutive sentences in his case demean the seriousness of

other more violent crimes.

        {¶43} With respect to the first point, as the court noted, he was convicted of four

separate crimes. Moreover, prior to these offenses, appellant was convicted previously

of voyeurism and committed the offenses while under sexual-offender-registration

requirements. This demonstrates a definite pattern of perverse conduct of a sexual

nature involving non-consensual victims (in this case, a minor). The trial court

reasonably    concluded    that   the   imposition   of   consecutive   sentences   is   not

disproportionate to the danger he poses to the public.

        {¶44} Regarding his second argument, appellant points out that the Second

District’s holding in State v. Overholser, 2d Dist. Clark No. 2014-CA-42, 2015-Ohio-

1980.     In Overholser, the Second District reversed a trial court’s imposition of

consecutive sentences, concluding that the sentence was inappropriate because it

would “demean the seriousness of other more violent crimes and the harm to other

victims.” Id. at ¶32. The court noted that the appellant in that matter was convicted of

five counts of gross-sexual imposition and received four years of imprisonment for each

count, to be served consecutively. The court went on to note such a sentence would

demean the seriousness of other more violent crimes, such as rape and murder. While

we do not see the consideration highlighted in Overholser as necessarily improper, it

does not accurately trace the statutory language of R.C. 2929.14(C). The statute does

not require a court to find that consecutive sentences would demean the severity of




                                             12
other, arguably worse or more violent crimes. Rather, it requires the trial court to find,

in light of the surrounding facts, whether consecutive sentences are proportionate (or,

alternatively, “not disproportionate”) to the seriousness of the criminal conduct in this

case.

        {¶45} Under the circumstances, the court underscored that Jo.S. suffered

serious psychological harm, that was catalogued in a statement authored by the victim

herself. The court further highlighted the harm and seriousness of the criminal conduct

was exacerbated by the victim’s age and her relationship with appellant. Appellant

stood in loco parentis and held a relationship of trust with Jo.S. which, the court

emphasized, was used to commit the offenses.             Given these factors, which are

supported by the record, we conclude the trial court did not err when if found

consecutive sentences were not disproportionate to the seriousness of appellant’s

conduct, i.e., the four clandestine recordings of a minor in a state of nudity.       We

therefore hold the trial court’s imposition of four nine-month terms, to be served

consecutively, was consistent with the record and not contrary to law.

        {¶46} Appellant’s final assignment of error is without merit.

        {¶47} For the reasons discussed in this opinion, the judgment of the Lake

County Court of Common Pleas is affirmed.



MATT LYNCH, J.,

MARY JANE TRAPP, J.,

concur.




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