2018 Ohio 3421
Ohio Ct. App.2018Background
- Defendant John Van Tielen was convicted after pleading guilty to four counts of pandering sexually-oriented material involving a minor arising from a multi-state child-pornography investigation; he is serving a mandatory 24-year sentence.
- Evidence seized under a search warrant included a computer, and allegedly thumb drives and SD cards; graphic child-pornography images were found on the computer.
- Van Tielen filed a motion for return of property seeking the computer, thumb drives, and SD cards; the trial court initially denied the motion (res judicata), this court reversed and remanded for a proper forfeiture/return determination.
- On remand the state informed the court only the computer remained in its possession; it argued the computer (and any high-capacity media) constituted contraband subject to destruction under Ohio law.
- The trial court denied Van Tielen’s motion to strike the state’s memorandum and denied his motion for return of property, concluding the computer contained contraband and that the court could not order return of items not in the state’s possession.
- Van Tielen appealed raising three assignments of error; the appellate court affirmed, holding the computer must be destroyed as contraband and declining to order return of other media not in the state’s possession.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the seized computer is contraband and must be destroyed | State: computer contains graphic child pornography and is contraband; should be destroyed to prevent further illicit use | Van Tielen: court erred in finding computer contraband and ordering (or allowing) destruction | Held: computer contained child pornography (supported by guilty plea) and must be destroyed; denial of return proper |
| Whether thumb drives and SD cards should be returned | State: those items either were not in state possession or, if they existed, likely contraband and destroyed | Van Tielen: requests for return of these items; analogies to lost/misplaced property or money | Held: trial court cannot return property it does not possess; no error in denying return |
| Whether the state’s memorandum was untimely and should be struck | State: memorandum was filed at the court’s request to identify property in its possession | Van Tielen: memorandum was filed months late in violation of local rules | Held: memorandum was filed at court’s request and not subject to local filing deadline; denying motion to strike was within court’s docketing discretion |
| Whether returning the computer would expose defendant to further prosecution | Van Tielen: returning property should be ordered; implied risk argument | State: returning contraband would enable further crimes; defendant’s guilty plea confirms images existed | Held: returning the computer would risk further illicit possession/prosecution; court properly refused return |
Key Cases Cited
- State ex rel. Toledo Blade Co. v. Seneca Cty. Bd. of Commissioners, 120 Ohio St.3d 372 (2008) (deleted electronic files frequently remain recoverable from storage/backups)
- Bennis v. Michigan, 516 U.S. 442 (1996) (civil forfeiture serves to prevent further illicit use of property)