State v. Hipps
2017 Ohio 7707
Oh. Ct. App. 7th Dist. Mahonin...2017Background
- In late 2014, law enforcement downloaded child pornography from an IP address traced to Darryl Hipps via a peer-to-peer file‑sharing program on his computer. Downloads occurred on five separate dates and involved different videos.
- A Mahoning County Grand Jury indicted Hipps on five counts of pandering obscenity involving a minor (second‑degree felonies) and five counts of pandering sexually oriented matter involving a minor (fourth‑degree felonies).
- Hipps pled guilty to the five pandering‑obscenity counts; the other five counts were dismissed under a plea agreement.
- At sentencing the court imposed concurrent eight‑year terms on four counts and a consecutive two‑year term on the fifth, for a total of ten years.
- Hipps appealed, arguing (1) the five pandering‑obscenity convictions were allied offenses and should have merged and (2) the court erred in imposing consecutive sentences without the required statutory findings.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether multiple pandering‑obscenity convictions must merge as allied offenses under R.C. 2941.25 | State: multiple videos/dates → separate offenses; different victims/harm | Hipps: single act (installing file‑sharing) and no separate animus; downloads occurred without his knowledge | Not merged: each video involved different victim(s) and separate animus for each download, so multiple convictions allowed |
| Whether trial court made required findings under R.C. 2929.14(C)(4) to impose consecutive sentences | State: court made necessary findings at hearing and in entry (necessary to protect public/punish; not disproportionate; single term inadequate) | Hipps: court failed to expressly find two or more offenses were committed as part of one or more courses of conduct (subsection (b)) | Affirmed: court satisfied Bonnell/Hill standards — made required findings at hearing and entry; record shows appropriate analysis even though exact statutory phrasing for (b) was not recited |
Key Cases Cited
- State v. Ruff, 34 N.E.3d 892 (Ohio 2015) (sets framework for allied‑offense merger under R.C. 2941.25)
- State v. Bonnell, 16 N.E.3d 659 (Ohio 2014) (trial court must make R.C. 2929.14(C)(4) findings at sentencing hearing and incorporate them into entry)
- New York v. Ferber, 458 U.S. 747 (U.S. 1982) (distribution/possession of child pornography perpetuates victimization)
- U.S. v. Norris, 159 F.3d 926 (5th Cir. 1998) (receiving or possessing child‑pornography images contributes to continued victimization)