[Cite as State v. Bates, 2012-Ohio-1080.]


                                        COURT OF APPEALS
                                    GUERNSEY COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT




STATE OF OHIO                                :    JUDGES:
                                             :    Hon. Patricia A. Delaney, P.J.
        Plaintiff-Appellee                   :    Hon. Sheila G. Farmer, J.
                                             :    Hon. John W. Wise, J.
-vs-                                         :
                                             :    Case Nos.    11CA000016
BRYAN BATES                                  :                 11CA000026
                                             :                 11CA000033
        Defendant-Appellant                  :
                                             :    OPINION




CHARACTER OF PROCEEDING:                          Appeal from the Court of Common
                                                  Pleas, Case No. 07CR117



JUDGMENT:                                         Affirmed




DATE OF JUDGMENT:                                 March 5, 2012




APPEARANCES:

For Plaintiff-Appellee                            For Defendant-Appellant

DANIEL G. PADDEN                                  BRYAN BATES, PRO SE
139 West 8th Street                               Inmate No. 577218
P.O. Box 640                                      P.O. Box 5500
Cambridge, OH 43725                               Chillicothe, OH 45601
Guernsey County, Case Nos. 11CA000016, 11CA000026, & 11CA000033                                2

Farmer, J.

       {¶1}   On June 29, 2007, the Guernsey County Grand Jury indicted appellant,

Bryan Bates, on twelve counts of pandering sexually oriented matter involving a minor

in violation of R.C. 2907.322 and thirty counts of illegal use of a minor in nudity oriented

material or performance in violation of R.C. 2907.323.        Said counts arose from an

international investigation between the United States and Canada on child pornography

on the internet.

       {¶2}   On October 31, 2007, appellant filed a motion to suppress the search

warrant issued in his case. A hearing was held on December 14, 2007. By judgment

entry filed December 19, 2007, the trial court denied the motion.

       {¶3}   A jury trial commenced on March 25, 2008. The jury found appellant guilty

as charged.        By judgment entry of sentence filed April 18, 2008, the trial court

sentenced appellant to an aggregate term of thirteen years in prison.

       {¶4}   Appellant appealed, challenging the denial of the motion to suppress, the

testimony of a computer forensics expert, the manifest weight and sufficiency of the

evidence, and the effective assistance of counsel.         This court denied appellant's

assignments of error and affirmed his convictions. State v. Bates, Guernsey App. No.

08 CA 15, 2009-Ohio-275.

       {¶5}   On April 26, 2011, appellant filed a motion to correct his sentence

pursuant to Crim.R. 32(C).       By judgment entry filed May 23, 2011, the trial court

amended the April 18, 2008 judgment entry of sentence to specify that appellant was

convicted by a jury of his peers.
Guernsey County, Case Nos. 11CA000016, 11CA000026, & 11CA000033                               3


       {¶6}   On June 1, 2011, appellant filed a motion to correct amended judgment

entry to comport with Crim.R. 32(C).        On August 4, 2011, the trial court ordered

appellant to submit a proposed draft of the entry of clarification regarding Crim.R. 32(C).

       {¶7}   On August 8, 2011, appellant filed a motion to correct sentence, arguing

allied offenses of similar import. By entry filed August 12, 2011, the trial court denied

the motion, noting the issue should have been raised on direct appeal.

       {¶8}   On August 22, 2011, appellant filed a proposed draft of the entry for

clarification regarding Crim.R. 32(C) as directed by the trial court. On August 26, 2011,

the trial court filed a judgment entry of sentence pursuant to Civ.R. 60(A), again

sentencing appellant to an aggregate term of thirteen years in prison.

       {¶9}   On August 29, 2011, appellant filed a motion for reconsideration on the

allied offenses issue. By entry filed October 19, 2011, the trial court denied the motion.

       {¶10} On November 21, 2011, appellant filed a request for hearing to correct

sentence pursuant to R.C. 2929.14 and 2929.41 and State v. Foster, 109 Ohio St.3d 1,

2006-Ohio-856. By entry filed January 24, 2012, the trial court denied the request.

       {¶11} Appellant filed three appeals, Case No. 11CA000016 on the trial court's

May 23, 2011 order amending the sentencing entry, Case No. 11CA000026 on the trial

court's August 12, 2011 entry denying appellant's motion to correct sentence regarding

allied offenses, and Case No. 11CA000033 on the trial court's August 26, 2011

judgment entry on sentencing.       Because the arguments in each case are basically

identical, we will address them collectively.

       {¶12} This matter is now before this court for consideration. Assignments of

error in Case No. 11CA000016 are as follows:
Guernsey County, Case Nos. 11CA000016, 11CA000026, & 11CA000033            4


                                     I

     {¶13} "THE TRIAL COURT ERRED AS A MATTER OF LAW IN OVERRULING

DEFENDANT'S MOTION TO SUPPRESS WHERE THE TRIAL COURT USED FACTS

OUTSIDE THE FOUR CORNERS OF THE AFFIDAVIT TO ESTABLISH PROBABLE

CAUSE, WHERE THE AFFIDAVIT UPON WHICH THE SEARCH WARRANT WAS

BASED   DID   NOT   ESTABLISH   PROBABLE     CAUSE,   CONTAINED   FALSE,

MISLEADING AND STALE INFORMATION."

                                    II

     {¶14} "THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW WAS

VIOLATED BECAUSE THE CONVICTIONS WERE BASED ON INSUFFICIENT

EVIDENCE."

                                    III

     {¶15} "THE DEFENDANT'S CONVICTION WAS AGAINST THE MANIFEST

WEIGHT OF THE EVIDENCE."

                                    IV

     {¶16} "THE TRIAL COURT ERRED AS A MATTER OF LAW, WHEREAS THE

COURT DID NOT DETERMINE SPOUSAL COMPETENCY PRIOR TO THE

DEFENDANT'S WIFE TESTIFYING."

                                    V

     {¶17} "THE TRIAL COURT ERRED AS A MATTER OF LAW AND ABUSED ITS

DISCRETION IN ALLOWING THE STATE'S WITNESS TO TESTIFY 'WITHIN A

REASONABLE DEGREE OF SCIENTIFIC CERTAINTY' WITHOUT BEING PROPERLY
Guernsey County, Case Nos. 11CA000016, 11CA000026, & 11CA000033                  5


CERTIFIED AS AN EXPERT IN A SCIENTIFIC FIELD OF STUDY AND WITHOUT

INSTRUCTION TO THE JURY REGARDING SCIENTIFIC TEST RESULYS."

                                       VI

     {¶18} "THE TRIAL COURT ERRED AS A MATTER OF LAW AND AN ABUSE

OF DISCRETION BY ALLOWING HEARSAY TESTIMONY FROM FEDERAL AGENT'S

(SIC) THAT VIOLATED APPELLANT'S CONFRONTATION CLAUSE RIGHTS

GUARANTEED BY THE SIXTH AMENDMENT OF THE CONSTITUTION."

                                      VII

     {¶19} "THE TRIAL COURT ERRED AS A MATTER OF LAW, WHEREAS

APPELLANT'S SENTENCE WAS CONTRARY TO LAW."

                                      VIII

     {¶20} "THE APPELLANT WAS DENIED HIS CONSTITUTIONAL RIGHT

GUARANTEED BY THE SIXTH AMENDMENT OF THE CONSTITUTION WHEREAS,

THE STATE FAILED TO PROVIDE THE DEFENDANT WITH A WRITTEN REPORT

SUMMARIZING THE EXPERT WITNESS'S TESTIMONY, FINDINGS, ANALYSIS,

CONCLUSIONS, OR OPINION PURSUANT TO CRIMINAL RULE 16(K)."

     {¶21} Assignments of error in Case No. 11CA000026 are as follows:

                                       I

     {¶22} "THE TRIAL COURT ERRED AS A MATTER OF LAW WHEREAS,

APPELLANT'S SENTENCE WAS CONTRARY TO LAW BECAUSE THE TRIAL

COURT FAILED TO APPLY ALL OHIO REVISED CODE STATUTORILY MANDATED

SENTENCING     PROVISIONS     TO   THE       APPELLANT'S   FORTY-TWO     COUNT

CONVICTION."
Guernsey County, Case Nos. 11CA000016, 11CA000026, & 11CA000033                    6


                                        II

      {¶23} "THE TRIAL COURT ERRED AS A MATTER OF LAW WHEREAS,

APPELLANT'S CONVICTIONS FOR PANDERING SEXUALLY ORIENTED MATTER

INVOLVING A MINOR AND ILLEGAL USE OF A MINOR IN NUDITY ORIENTED

MATERIAL OR PERFORMANCE ARE ALLIED OFFENSE OF SIMILAR IMPORT."

                                        III

      {¶24} "THE TRIAL COURT ABUSED IT'S (SIC) DISCRETION, COMMITTED

PLAIN ERROR AND VIOLATED APPELLANT'S RIGHT TO DUE PROCESS UNDER

THE 14TH AMENDMENT OF THE U.S. CONSTITUTION, AND SEC. 16, ART. I OF

THE OHIO CONSTITUTION, WHEN AT THE SENTENCING IT FAILED TO APPLY

ALL   OHIO     REVISED     CODE     STATUTORILY      MANDATED       SENTENCING

PROVISIONS, SPECIFICALLY WHETHER APPELLANT'S CONVICTIONS WERE

ALLIED OFFENSES OF SIMILAR IMPORT UNDER R.C. 2941.25."

      {¶25} Assignments of error in Case No. 11CA000033 are as follows:

                                         I

      {¶26} "THE TRIAL COURT ERRED AS A MATTER OF LAW IN OVERRULING

DEFENDANT'S MOTION TO SUPPRESS WHERE THE TRIAL COURT USED FACTS

OUTSIDE THE FOUR CORNERS OF THE AFFIDAVIT TO ESTABLISH PROBABLE

CAUSE, WHERE THE AFFIDAVIT UPON WHICH THE SEARCH WARRANT WAS

BASED    DID   NOT    ESTABLISH     PROBABLE      CAUSE,    CONTAINED     FALSE,

MISLEADING AND STALE INFORMATION."
Guernsey County, Case Nos. 11CA000016, 11CA000026, & 11CA000033      7


                                    II

     {¶27} "THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW WAS

VIOLATED BECAUSE THE CONVICTIONS WERE BASED ON INSUFFICIENT

EVIDENCE."

                                    III

     {¶28} "THE DEFENDANT'S CONVICTION WAS AGAINST THE MANIFEST

WEIGHT OF THE EVIDENCE."

                                    IV

     {¶29} "THE TRIAL COURT ERRED AS A MATTER OF LAW, WHEREAS THE

COURT DID NOT DETERMINE SPOUSAL COMPETENCY PRIOR TO THE

DEFENDANT'S WIFE TESTIFYING."

                                    V

     {¶30} "THE TRIAL COURT ERRD AS A MATTER OF LAW AND ABUSED ITS

DISCRETION IN ALLOWING THE STATE'S WITNESS TO TESTIFY 'WITHIN A

REASONABLE DEGREE OF SCIENTIFIC CERTAINTY' WITHOUT BEING PROPERLY

CERTIFIED AS AN EXPERT IN A SCIENTIFIC FIELD OF STUDY AND WITHOUT

INSTRUCTION TO THE JURY REGARDING SCIENTIFIC TEST RESULTS."

                                    VI

     {¶31} "THE TRIAL COURT ERRED AS A MATTER OF LAW AND AN ABUSE

OF DISCRETION BY ALLOWING HEARSAY TESTIMONY FROM FEDERAL AGENT'S

(SIC) THAT VIOLATED APPELLANT'S CONFRONTATION CLAUSE RIGHTS

GUARANTEED BY THE SIXTH AMENDMENT OF THE CONSTITUTION."
Guernsey County, Case Nos. 11CA000016, 11CA000026, & 11CA000033                                8


                                            VII

       {¶32} "THE TRIAL COURT ERRED AS A MATTER OF LAW, WHEREAS THE

APPELLANT'S SENTENCE WAS CONTRARY TO LAW."

                                            VIII

       {¶33} "THE      APPELLANT       WAS         DENIED   CONSTITUTIONAL          RIGHT

GUARANTEED BY THE SIXTH AMENDMENT OF THE CONSTITUTION WHEREAS,

THE STATE FAILED TO PROVIDE THE DEFENDANT WITH THE RESULTS OF THE

FORENSIC EXAMINATION AND SCIENTIFIC TEST PERFORMED BY AGENT

BRYANT PURSUANT TO CRIMINAL RULE 16."

       {¶34} Assignments of Error I, II, III, IV, V, VI, and VIII in Case No. 11CA000016,

Assignments of Error I, II, and III in Case No. 11CA000026, and Assignments of Error I,

II, III, IV, V, VI, and VIII in Case No. 11CA000033 are res judicata. Res judicata is

defined as "[a] valid, final judgment rendered upon the merits bars all subsequent

actions based upon any claim arising out of the transaction or occurrence that was the

subject matter of the previous action." Grava v. Parkman Twp., 73 Ohio St.3d 379,

1995-Ohio-331, syllabus; see also, State v. Perry (1967), 10 Ohio St.2d 175. Appellant

either raised or could have raised these arguments during his direct appeal. We will

review appellant's arguments in Assignment of Error VII in Case No. 11CA000016 and

Assignment of Error VII in Case No. 11CA000033 regarding his sentence.

       {¶35} Appellant argues the trial court erred in sentencing him given the Supreme

Court of Ohio's ruling in State v. Foster, 109 Ohio St.3d 1, 2006-Ohio-856, wherein the

court severed the judicial fact-finding portions of R.C. 2929.14, holding that "trial courts

have full discretion to impose a prison sentence within the statutory range and are no
Guernsey County, Case Nos. 11CA000016, 11CA000026, & 11CA000033                               9


longer required to make findings or give their reasons for imposing maximum,

consecutive, or more than the minimum sentences." Foster, at ¶100.

      {¶36} In State v. Kalish, 120 Ohio St.3d 23, 2008–Ohio–4912, ¶4, the Supreme

Court of Ohio set forth the following two-step approach in reviewing a sentence:

      {¶37} "In applying Foster to the existing statutes, appellate courts must apply a

two-step approach. First, they must examine the sentencing court's compliance with all

applicable rules and statutes in imposing the sentence to determine whether the

sentence is clearly and convincingly contrary to law. If this first prong is satisfied, the

trial court's decision shall be reviewed under an abuse-of-discretion standard."

      {¶38} In order to find an abuse of discretion, we must determine the trial court's

decision was unreasonable, arbitrary or unconscionable and not merely an error of law

or judgment. Blakemore v. Blakemore (1983) 5 Ohio St.3d 217.

      {¶39} We note although in Oregon v. Ice (2009), 555 U.S. 160, the United States

Supreme Court upheld the constitutional validity of an Oregon statute similar to Ohio's

pre-Foster sentencing statutes, the Supreme Court of Ohio in State v. Hodge, 128 Ohio

St.3d 1, 2010–Ohio–6320, held the Oregon case did not revive the Foster statutes, and

trial courts are not obligated to engage in judicial fact-finding prior to imposing

consecutive sentences.

      {¶40} Appellant was convicted of twelve counts of pandering sexually oriented

matter involving a minor in violation of R.C. 2907.322, felonies in the second degree,

and thirty counts of illegal use of a minor in nudity oriented material or performance in

violation of R.C. 2907.323, felonies in the fifth degree. Felonies of the second degree

are punishable by "two, three, four, five, six, seven, or eight years" and felonies of the
Guernsey County, Case Nos. 11CA000016, 11CA000026, & 11CA000033                            10


fifth degree are punishable by "six, seven, eight, nine, ten, eleven, or twelve months."

R.C. 2929.14(A)(2) and (5). In its judgment entry on sentencing filed August 28, 2011,

the trial court sentenced appellant to the minimum two years on each of the twelve

counts, six to be served consecutively and six to be served concurrently with each other

and the other six counts, and the minimum of six months on each of the thirty counts,

two to be served consecutively to each other and the twelve year sentence and twenty-

eight to be served concurrently with each other and the other sentences, for an

aggregate term of thirteen years in prison. Clearly the sentences on each count were

within the permissible range.     Furthermore, in its judgment entry, the trial court

expressly stated that it considered the purposes and principles of sentencing under R.C.

2929.11, as well as the seriousness and recidivism factors under R.C. 2929.12.

Accordingly, the sentences are not clearly and convincingly contrary to law.

      {¶41} Appellant was found guilty on twelve counts of pandering sexually oriented

matter involving a minor and thirty counts of illegal use of a minor in nudity oriented

material or performance involving the internet and was sentenced to thirteen years in

prison. Appellant was subject to a much longer sentence, but the trial court sentenced

him to the minimums and ordered many of the sentences to be served concurrently.

We find the aggregate sentence was neither contrary to law nor an abuse of discretion

under Foster.

      {¶42} We note the May 23, 2011 judgment entry and the August 26, 2011

judgment entry of sentence complies with Crim.R. 32(C) and State v. Baker, 119 Ohio

St.3d 197, 2008-Ohio-3330, as requested by appellant.
Guernsey County, Case Nos. 11CA000016, 11CA000026, & 11CA000033                      11


      {¶43} All of appellant's assignments of error in each of the three cases are

denied.

      {¶44} The judgments of the Court of Common Pleas of Guernsey County, Ohio

are hereby affirmed.

By Farmer, J.

Delaney, P.J. and

Wise, J. concur.




                                        _s/ Sheila G. Farmer__________



                                        _s/ Patricia A. Delaney________



                                        _s/ John W. Wise________________

                                                      JUDGES




SGF/db 0220
              IN THE COURT OF APPEALS FOR GUERNSEY COUNTY, OHIO

                             FIFTH APPELLATE DISTRICT



STATE OF OHIO                           :
                                        :
       Plaintiff-Appellee               :        JUDGMENT ENTRY
                                        :
-vs-                                    :
                                        :
BRYAN BATES                             :        CASE NOS. 11CA000016
                                        :                  11CA000026
       Defendant-Appellant              :                  11CA000033




       For the reasons stated in our accompanying Memorandum-Opinion, the

judgments of the Court of Common Pleas of Guernsey County, Ohio are affirmed.

Costs to appellant.




                                        _s/ Sheila G. Farmer__________



                                        _s/ Patricia A. Delaney________



                                        _s/ John W. Wise________________

                                                     JUDGES
