State v. Stout
6 N.E.3d 1263
Ohio Ct. App.2014Background
- Indicted May 5, 2011 for two fourth-degree pandering counts and four fifth-degree unlawful-use counts; a superseding indictment (Oct. 2012) added 40 counts from images on Stout's computer; Stout entered a written plea to two pandering counts and two unlawful-use counts via Alford plea on Jan. 30, 2013, with 42 remaining counts dismissed.
- State sought a five-year prison term; trial court conducted a sentencing hearing Mar. 6, 2013 and imposed concurrent and consecutive terms totaling 30 months, plus five years post-release control, $500 fine, and Tier II designation.
- Stout argued HB 86 amendments (R.C. 2929.13(B) and 2929.14(C)) should not apply since offenses were before the amendments; he contended the court erred by finding that possession of child pornography caused physical harm, which would justify prison instead of community control.
- This Court held HB 86 applies to Stout because he was sentenced after the amendments became effective, and the physical-harm finding was erroneous because possession of images does not cause “physical harm” under R.C. 2929.13(B)(1)(b)(ii); thus prison was improper and the case must be remanded for resentencing with community control unless additional issues are resolved.
- The court additionally noted the issue of consecutive sentencing under HB 86 was moot given the reversal and remand for resentencing.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether HB 86 applies to Stout’s sentence | State: HB 86 applies because he was sentenced after its effective date | Stout: amendments should not apply to offenses committed before their effective date | HB 86 applies to Stout; remand for resentencing |
| Whether the trial court’s physical-harm finding supported a prison sentence | State: possession/viewing of child pornography causes physical harm to victims | Stout: mere possession did not cause physical harm | Physical harm not proven; community control required |
| Whether consecutive-sentencing findings were required under HB 86 | State: findings required for consecutive terms | Stout: not applicable due to mandatory community control | Moot; issue not addressed on remand |
Key Cases Cited
- State v. Griggs, 103 Ohio St.3d 85 (2004) (relevance of HB 86 and sentencing considerations (Fourth/Second-tier offenses))
- State v. Meadows, 28 Ohio St.3d 43 (1986) (harm distinctions in child-pornography context; psychological vs physical harm)
- State v. Dawson, 16 Ohio App.3d 443 (1984) (defines physical harm as bodily injury or physiological impairment)
- State v. Maynard, 132 Ohio App.3d 820 (1999) (possession of child pornography; discussion of harm)