2011 Ohio 5703
Ohio Ct. App.2011Background
- Indicted September 24, 2009 for illegal use of a minor in nudity-oriented material, a fifth-degree felony.
- November 12, 2009, Underwood moved to suppress; January 7, 2010 dismissal of the motion; suppression hearing cancelled.
- February 3, 2010 renewed motion to suppress; suppression hearing held and denied.
- Trial resulted in a conviction for the charged offense; jury found guilt; court classified Underwood as a Tier I child victim offender and sentenced him to one year.
- Defense challenged the cell-phone data search; Underwood had consented to search of data stored on his phone.
- Appellate court affirmed the conviction and rejected both assignments of error.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether warrantless cell-phone data search via consent violated Fourth Amendment | Underwood | State | Consent valid; Smith did not eliminate consent exception. |
| Whether evidence supported recklessness element and thus conviction | Underwood | State | Sufficient evidence; conviction not against weight. |
Key Cases Cited
- State v. Farris, 9th Dist. No. 03CA0022 (2004-Ohio-826) (mixed questions of fact and law; defer to trial court on findings of fact; de novo on law)
- State v. Searls, 118 Ohio App.3d 739 (1997) (de novo review of law to facts)
- State v. Tooley, 114 Ohio St.3d 366 (2007-Ohio-3698) (recklessness standard under 2907.323)