STATE OF OHIO v. NADEEM ABRAHAM
C.A. No. 26258
IN THE COURT OF APPEALS NINTH JUDICIAL DISTRICT
September 19, 2012
[Cite as State v. Abraham, 2012-Ohio-4248.]
APPEAL FROM JUDGMENT ENTERED IN THE COURT OF COMMON PLEAS COUNTY OF SUMMIT, OHIO CASE No. CR 10 10 2957
WHITMORE, Presiding Judge.
{1} Defendant-Appellant, Nadeem Abraham, appeals from his convictions in the Summit County Court of Common Pleas. This Court affirms.
I
{2} Shortly after Easter in 2010, I.D. reported to her teacher that her grandfather, Abraham, had sexually abused her. The school contacted I.D.s mother and an investigation ensued. According to I.D., Abraham had touched her genitals with his hands and mouth multiple times over the course of several years. The police spoke with Abraham and, in the course of their investigation, decided to search the desktop computer from his home. A forensic analysis of the computer uncovered images that appeared to depict two minors engaging in sexual activity and another naked minor.
{3} A grand jury indicted Abraham on the following counts: (1) rape, in violation of
{4} Abraham filed a motion to sever the rape and gross sexual imposition counts from the other two counts, arguing that the two sets of counts were unrelated and that their joinder would cause him undue prejudice. The trial court denied his motion to sever, and the matter proceeded to a jury trial. At the conclusion of the trial, the jury found Abraham guilty on all four counts. Abraham filed a motion for new trial on the basis that the State used his pre-arrest silence during the trial to infer his guilt, but the trial court denied Abrahams motion. The court sentenced Abraham to fifteen years to life in prison and classified him as a Tier III sexual offender.
{5} Abraham now appeals from his convictions and raises five assignments of error for our review. For ease of analysis, we rearrange several of the assignments of error.
II
Assignment of Error Number Five
THE TRIAL COURT COMMITTED PREJUDICIAL ERROR BY DENYING DEFENDANTS MOTION FOR SEVERANCE OF THE GROSS SEXUAL IMPOSITION AND RAPE COUNTS FROM THE OTHER COUNTS IN THE INDICTMENT AS TRIED HEREIN, IN VIOLATION OF DEFENDANTS RIGHTS AS GUARANTEED TO HIM BY THE DUE PROCESS PROVISION OF SECTION I OF THE FOURTEENTH AMENDMENT TO THE U.S. CONSTITUTION, AND THE DUE PROCESS PROVISION OF O. CONST. § 16.
{6} In his fifth assignment of error, Abraham argues that the trial court erred by denying his motion to sever certain counts in his indictment. Specifically, he argues that the
{7} Initially, we must consider whether Abraham forfeited his challenge to the trial courts ruling on his motion to sever. “It is well-settled that the law favors joinder.” State v. Merriweather, 9th Dist. No. 97CA006693, 1998 WL 239773, *3 (May 6, 1998).
{8} In his motion to sever, Abraham wrote the following: “Pursuant to
{9} Although Abraham forfeited his motion to sever, he argues in the alternative that the trial courts denial of his motion amounted to plain error. Because forfeiture does not foreclose a claim of plain error, we analyze Abrahams alternative argument. See Miller at ¶ 18. Under
{10} Two of the charges against Abraham arose as a result of the sexual abuse allegations brought to light by his granddaughter, and the remaining two charges arose from pornographic images taken from his computer. Abraham argues that the court should have severed the two sets of counts because there was no evidence that he used the computer in connection with the offenses against his granddaughter or that any of the images on his computer
{11} Abraham fails to analyze either of the factors set forth in Schaim. The State only searched Abrahams computer as a result of the allegations brought to light by his granddaughter. See State v. Wigle, 9th Dist. No. 25593, 2011-Ohio-6239, ¶ 23 (joinder appropriate, in part, because one charge occurred while officers were investigating the other charge). There also was testimony that the pornographic images investigators uncovered on the computer were, in fact, children. Abraham makes no attempt to explain why evidence that his computer contained child pornography would be inadmissible in his trial for sexually abusing a child victim. See State v. Zoubaier, 9th Dist. No. 26049, 2012-Ohio-2888, ¶ 12;
{12} This Court will not undertake an analysis of the Schaim factors on behalf of Abraham when he has not done so. As this Court has repeatedly held, “[i]f an argument exists that can support [an] assignment of error, it is not this [C]ourt‘s duty to root it out.” Cardone v. Cardone, 9th Dist. No. 18349, 1998 WL 224934, *8 (May 6, 1998). Abraham has not shown that the trial court committed plain error by denying his motion to sever. Consequently, his fifth assignment of error is overruled.
Assignment of Error Number Four
THE TRIAL COURT COMMITTED PREJUDICIAL ERROR BY DENYING DEFENDANTS MOTIONS FOR ACQUITTAL WHICH WERE MADE AT THE CLOSE OF THE STATES EVIDENCE AND THE CLOSE OF ALL EVIDENCE, SINCE THE EVIDENCE IN THIS CASE IS INSUFFICIENT AS A MATTER OF LAW TO SUPPORT A CONVICTION; ACCORDINGLY, DEFENDANTS CONVICTION WAS IN DENIAL OF HIS RIGHT TO DUE PROCESS, AS GUARANTEED TO HIM BY SECTION I OF THE FOURTEENTH AMENDMENT TO THE U.S. CONSTITUTION, AND THE DUE PROCESS PROVISION OF O. CONST. § 16.
{13} In his fourth assignment of error, Abraham argues that his convictions are based on insufficient evidence, and that the trial court erred by denying his motion for acquittal. We disagree.
{14} In order to determine whether the evidence before the trial court was sufficient to sustain a conviction, this Court must review the evidence in a light most favorable to the prosecution. State v. Jenks, 61 Ohio St.3d 259, 273 (1991).
An appellate courts function when reviewing the sufficiency of the evidence to support a criminal conviction is to examine the evidence admitted at trial to determine whether such evidence, if believed, would convince the average mind of the defendants guilt beyond a reasonable doubt. The relevant inquiry is whether, after viewing the evidence in a light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt.
Id. at paragraph two of the syllabus; see also State v. Thompkins, 78 Ohio St.3d 380, 386 (1997). “In essence, sufficiency is a test of adequacy.” Thompkins, 78 Ohio St.3d at 386.
{15} While Abraham requests that this Court review the evidence for all of his offenses, his sufficiency argument focuses exclusively on his convictions for the illegal use of a
{16} “No person shall * * * [p]ossess or view any material or performance that shows a minor who is not the persons child * * * in a state of nudity * * * .”
A person acts recklessly when, with heedless indifference to the consequences, he perversely disregards a known risk that his conduct is likely to cause a certain result or is likely to be of a certain nature. A person is reckless with respect to circumstances when, with heedless indifference to the consequences, he perversely disregards a known risk that such circumstances are likely to exist.
{17} “No person, with knowledge of the character of the material or performance involved, shall * * * [k]nowingly solicit, receive, purchase, exchange, possess, or control any material that shows a minor participating or engaging in sexual activity * * * .”
{18} Detective Rinear seized the desktop computer from Abrahams home with his consent and delivered it to the Summit County Sheriffs Department for forensic analysis. Detective Daniel Sladek, a forensic specialist in computers, analyzed the computers hard drive and uncovered the two particular images that resulted in Abrahams charges. The first image, States Exhibit 7, was a JPEG file for which Detective Sladek was able to find a creation and access date of March 26, 2010. He also was able to find a modify date of April 3, 2010, meaning that the image could have been copied from another place or modified in some manner on that date. Detective Sladek opined within a reasonable degree of scientific certainty that the image most likely appeared on the computers screen and then was saved in a temporary internet file. Detective Sladek was unable to be more definitive in his conclusion because he could not
{19} The second image Detective Sladek found, States Exhibit 8, was also a JPEG file, but did not have a creation, access, or modification date. Detective Sladek located the image in the hard drives unallocated space, which he described as the space in which a computer stores deleted items until those items are overwritten by other data. Because Detective Sladek only found Exhibit 8 in the computers unallocated space, it was not possible for him to determine how the image might have gotten on the computer. He did testify, however, that Abraham had a particular user account on the computer and that the last account that had been accessed at the time the police confiscated the computer was Abrahams.
{20} The State presented the two images taken from Abrahams computer to the jury. Exhibit 7 depicts a small female in a seated position bending over the lap of another individual, who appears to be a pre-adolescent male. The male, who is seated next to the female, has his arm draped over the females back while his hand cups her chest and pulls her closer. Much of the females hair covers her face in the picture, but she appears to be performing fellatio on the male. Exhibit 8 depicts a lone female sitting in a bathtub filled with bubbles. The female is naked in the image, although the bubbles in the bathtub and her left hand obscure her genital area. In the image, the female looks straight to camera with pursed lips and blows bubbles from a small bubble wand that she holds with her right hand. The females chest is clearly visible in the image.
{22} Abraham testified at trial and admitted that he had used the desktop computer from his home to view pornography. See Jenks, 61 Ohio St.3d at paragraph two of the syllabus (sufficiency analysis examines all of the evidence admitted at trial). He also admitted that it was possible that he had viewed Exhibits 7 and 8 on the computer before, but stated that he could not remember one way or another because the images were not memorable to him.
{23} Viewing all of the evidence in a light most favorable to the prosecution, a rational trier of fact could have determined that the State proved the elements of Abrahams convictions
Assignment of Error Number Three
DEFENDANT-APPELLANTS CONVICTION IN THIS CASE IS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE AND MUST BE REVERSED, AS IN VIOLATION OF DEFENDANTS RIGHT TO DUE PROCESS AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE U.S. CONSTITUTION AND O. CONST. ART. I, § 16.
{24} In his third assignment of error, Abraham argues that his convictions are against the manifest weight of the evidence. We disagree.
must review the entire record, weigh the evidence and all reasonable inferences, consider the credibility of witnesses and determine whether, in resolving conflicts in the evidence, the trier of fact clearly lost its way and created such a manifest miscarriage of justice that the conviction must be reversed and a new trial ordered.
State v. Otten, 33 Ohio App.3d 339, 340 (9th Dist.1986). A weight of the evidence challenge indicates that a greater amount of credible evidence supports one side of the issue than supports the other. Thompkins, 78 Ohio St.3d at 387. Further, when reversing a conviction on the basis that the conviction was against the manifest weight of the evidence, the appellate court sits as the “thirteenth juror” and disagrees with the factfinders resolution of the conflicting testimony. Id. Therefore, this Courts “discretionary power to grant a new trial should be exercised only in the exceptional case in which the evidence weighs heavily against the conviction.” State v. Martin, 20 Ohio App.3d 172, 175 (1st Dist.1983). See also Otten, 33 Ohio App.3d at 340.
Rape and Gross Sexual Imposition
{26} I.D. was ten years old at the time of trial and testified that Abraham had sexually abused her multiple times over the years. All of the witnesses who testified at trial agreed that I.D., her younger brother, and her older sister, routinely visited her grandparents house once a week or more and often spent the night there before I.D. disclosed that she had been sexually abused. I.D. stated that Abraham would take her into either the garage or the computer room of his house before removing her clothing from the waist down. Abraham would then either touch I.D. on her “front private part” with his hands or perform oral sex on her. I.D. specified that Abraham touched her on the part of the body that “[y]ou urinate from” and that it was uncomfortable, “felt weird,” and sometimes it hurt afterwards. According to I.D., when her
{27} After I.D. reported that she had been abused, she met with a social worker from Summit County Children Services, had an interview with a social worker from the CARE Center at Akron Childrens Hospital, and underwent a physical examination. Kelly Lynn Aloisi conducted I.D.s preliminary interview at her fathers home and described I.D. as sad, embarrassed, and frightened. Although I.D.s later physical examination was normal, Donna Abbott, the nurse practitioner who conducted the exam, testified that the normal results of I.D.s exam were not inconsistent with the form of abuse she had reported. Nurse Abbott also testified that it is not unusual for victims of abuse to wait a substantial period of time before reporting the abuse. Much like her testimony at trial, in her interview with Cathy Beckwith-Laube at the CARE Center, I.D. described multiple occasions where Abraham sexually abused her with either his hands or his mouth.
{28} Marie Abraham, Abrahams wife, described I.D. as a child who was always seeking attention and competing with her siblings for her grandfathers affection. Marie testified that when her three grandchildren visited, I.D. and her brother were inseparable and that she could not recall a single time in the course of the nearly two-year period covered by the indictment that Abraham was alone in the home with I.D. Marie also testified that I.D.s attitude towards her grandparents had changed since her parents had separated and that she would ask her grandfather why he did not like her father. Even so, after she and her husband learned of I.D.s allegations and spoke to one another, Marie testified that Abraham thought perhaps I.D. was “probably mad at [him] because [he] was angry with the way she[ had been] keeping her room.”
{29} Abraham testified in his own defense and denied ever abusing I.D. Abraham stated that he mostly took part in fun activities with his grandchildren when they visited and that his wife mainly assumed the caretaking role. Abraham stated that he had always disapproved of his daughters relationship with I.D.s father and that I.D. would ask him questions about why he hated her father. Abraham agreed with his wifes assessment that I.D. and her brother were competitive with one another and that it was difficult to be with one without the other also being there. Abraham admitted, however, that he was able to keep from his wife the fact that he had used the desktop computer in the home office to view pornography. Abraham stated that he would view the pornography when his wife was upstairs in a different part of the house. As previously discussed, when the police searched Abrahams computer, they found images of child pornography.
{30} I.D.s mother, Deanne, also testified. Deanne admitted that her former husband and Abraham had never gotten along, but also testified that she had divorced her husband a little over four years before the trial. She also testified that, while her oldest daughter required a great deal of care due to the fact that she suffered from Rett Syndrome, she had suffered from the condition since a very early age and I.D. loved her sister and enjoyed helping her. Deanne testified that after I.D. told her about the abuse she regularly took I.D. to a psychologist over the course of a year so that she could receive therapy to address the abuse.
{31} Because there was no physical evidence of abuse, the jury in this matter essentially reached a decision based on credibility. A jury is “entitled to believe all, part, or none of the testimony of each witness,” and “[a]n appellate court must give deference to the jurys
Illegal Use of a Minor and Pandering Sexually Oriented Material
{32} This Court previously described the evidence the State set forth in support of Abrahams remaining convictions in his sufficiency assignment of error. In its case-in-chief, the defense presented the testimony of Dr. Steven Michael Klein, a gynecologist. Dr. Klein also viewed Exhibits 7 and 8 and opined that he could not determine or estimate the ages of any of the individuals depicted in those images. Dr. Klein testified that it is notoriously difficult to estimate chronological age and methods for doing so are not exact because people develop at different rates. Dr. Klein would only testify that the individuals depicted in Exhibits 7 and 8 appeared “to be biologically not as far advanced as other[s] * * * on the Bell-shaped curve of pubescence * * * .”
{33} Having viewed Exhibits 7 and 8 and listened to Dr. Steiners testimony, the jury could have rejected Dr. Kleins opinion and believed that the exhibits depicted minors. Jurors are not obligated to believe an expert merely because the person is one. Waugh v. Chakonas, 9th Dist. Nos. 25417 & 25480, 2011-Ohio-2764, ¶ 23. Moreover, the jurors could have believed that Abraham knowingly possessed or controlled Exhibit 7 and recklessly possessed Exhibit 8. Abraham admitted that he used the desktop computer to view pornography and that it was possible that he had viewed Exhibits 7 and 8. He claimed, however, that he did not remember whether he had viewed the images because they were not memorable. Viewing the two images themselves, the jury could have chosen to believe that Abrahams assertion that he would not have remembered seeing two disturbing images of child pornography was not believable. In any event, we cannot conclude that this is the exceptional case where the jury lost its way. Abrahams convictions for the illegal use of a minor in a nudity-oriented material or performance and pandering sexually oriented matter involving a minor are not against the manifest weight of the evidence. Consequently, his third assignment of error is overruled.
Assignment of Error Number Two
THE TRIAL COURT COMMITTED PREJUDICIAL ERROR BY ALLOWING OVER DEFENDANT-APPELLANTS REPEATED OBJECTION, THE STATE TO INTRODUCE TESTIMONY FROM A STATES WITNESS, CATHY LEIGHTON, AS TO THE NUMBER OF CHILDREN WHO HAVE WATCHED A VIDEO ON CHILD SEXUAL ABUSE WHO HAD SUBSEQUENTLY REPORTED ANY SUCH ABUSE.
{34} In his second assignment of error, Abraham argues that the trial court abused its discretion by admitting the testimony of Cathy Resick Leighton because it was irrelevant and impermissibly prejudicial. We disagree.
{35} A trial court has broad discretion in admitting evidence, and this Court will not overturn its decision on appeal absent an abuse of discretion that materially prejudices a defendant. State v. Wade, 9th Dist. No. 02CA0076, 2003-Ohio-2351, ¶ 8, quoting State v. Long, 53 Ohio St.2d 91, 98 (1978). Accord State v. Allen, 73 Ohio St.3d 626, 633 (1995). An abuse of
{36} Cathy Resick Leighton testified that she is an elementary school counselor for the Hudson City School District. Part of Leightons job each year is to present a grade-level appropriate sexual abuse program at the school. Leighton chose to show a video to I.D.s class as part of her program. Leighton described the video as a story about a girl who decides to tell her mother that her uncle has been touching her after a series of events. Leighton testified that, after the video, she then discusses the story with the kids to talk about whether the girl in the video had been sexually abused and whether she did the right thing by telling her mother. Leighton testified that since she had developed the particular sexual abuse program she presented to I.D.s class she had presented it to approximately 960 students. She then stated that only one child other than I.D. had ever reported abuse to her after viewing the material. Abraham objected to Leightons last response on the basis of relevance. The trial court overruled his objection, noting that the testimony was “marginally relevant.”
{37} Abraham argues that the trial court abused its discretion by admitting Leightons testimony that only I.D. and one other student out of approximately 960 students had reported sexual abuse after watching her program. He argues that the testimony was irrelevant and overly prejudicial. Yet, the record reflects that Abraham only objected to Leightons testimony on the basis of relevance. He did not object on the basis that the testimony was prejudicial. See
{38} “Relevant evidence” means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” (Emphasis added.)
{39} The burden imposed by
THE TRIAL COURT COMMITTED PREJUDICIAL ERROR BY DENYING DEFENDANT-APPELLANTS MOTION FOR MISTRIAL AND SUBSEQUENT MOTION FOR NEW TRIAL RELATING TO THIS ISSUE WHICH WERE MADE FOLLOWING THE REMARKS, DURING REDIRECT EXAMINATION, OF A STATES WITNESS, DETECTIVE LINDA RINEAR, TO THE EFFECT THAT DEFENDANT-APPELLANT MIGHT WISH TO SPEAK WITH AN ATTORNEY PRIOR TO SIGNING A CONSENT TO SEARCH HIS PERSONAL COMPUTER, IN VIOLATION OF DEFENDANTS RIGHTS UNDER THE FIFTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION.
{40} In his first assignment of error, Abraham argues that the trial court erred by denying his motion for a mistrial after the State relied upon his pre-arrest silence as evidence of his guilt in its case-in-chief. We disagree.
{41} “Mistrials need be declared only when the ends of justice so require and a fair trial is no longer possible.” State v. Franklin, 62 Ohio St.3d 118, 127 (1991). “The essential inquiry on a motion for mistrial is whether the substantial rights of the accused are adversely affected. Great deference is afforded to a trial courts decision regarding a motion for mistrial. Accordingly, this Court reviews the denial of a motion for mistrial for an abuse of discretion.” (Internal citations, alterations, and quotations omitted.) State v. Howes, 9th Dist. No. 24665, 2010-Ohio-421, ¶ 11. An abuse of discretion means that the trial court was unreasonable, arbitrary, or unconscionable in its ruling. Blakemore, 5 Ohio St.3d at 219.
{42} “A suspects right to an attorney during questioning * * * is derivative of his right to remain silent * * * ” State v. Leach, 102 Ohio St.3d 135, 2004-Ohio-2147, ¶ 13, quoting Wainwright v. Greenfield, 474 U.S. 284, 298-299, (1986) (Rehnquist, J., concurring). The State may not use a defendants silence in its case-in-chief to plant in the minds of the jury the idea “that innocent people speak to police to clear up misunderstandings, while guilty people consult with their attorneys.” Leach at ¶ 32. “[T]he [S]tates substantive use of the defendants pre-
{43} There was only one instance at trial where Abrahams pre-arrest, pre-Miranda silence was referenced. That reference occurred during the States redirect examination of Detective Linda Rinear. On direct examination, Detective Rinear explained that she investigated Abraham after Childrens Services contacted her and eventually went to Abrahams home to collect his computer. Detective Rinear indicated that Abraham signed a consent form, allowing the police to search the computer. On cross-examination, defense counsel repeatedly stressed Abrahams cooperation during Detective Rinears investigation. Specifically, defense counsel asked whether Abraham had returned Detective Rinears phone call after she had left him a voicemail, “willingly” came to the sheriffs office to meet with her, “voluntarily” spoke with her, and “voluntarily” signed the consent form to allow her to examine his computer. Detective Rinear answered each question in the affirmative. On redirect examination, the following exchange took place:
[PROSECUTOR]: And the consent to the computer, did he give that the first time you requested that or did you talk about that issue more than just one-time question? (Sic.)
[DETECTIVE RINEAR]: [Another detective] asked. Mr. Abraham stated that he didnt know if he needed to talk to an attorney or he may want to talk to an attorney. [The other detective] asked him, I believe he
[PROSECUTOR]: I dont want to get into all the details.
[DETECTIVE RINEAR]: Im sorry.
[DETECTIVE RINEAR]: Correct.
The State never again referenced Abraham‘s statement that he might want to talk to an attorney.
{¶44} Abraham did not object to the foregoing testimony, move to strike it, or ask the court for a curative instruction. Instead, Abraham moved for a mistrial on the basis that Detective Rinear‘s response was fatally prejudicial to his defense. Abraham maintains on appeal that, because the State did not introduce overwhelming evidence of his guilt, he was unduly prejudiced by the reference to his pre-arrest, pre-Miranda silence in the State‘s case-in-chief. See Leach at ¶ 38 (“Because the evidence of guilt was not overwhelming in this case, the admission of defendant‘s pre-arrest, pre-Miranda silence was clearly prejudicial.“).
{¶45} This case is distinct from Leach in that the State never affirmatively sought to use Abraham‘s silence as evidence. Compare id. at ¶ 4-7 (State remarked on defendant‘s silence during opening statement, repeatedly asked about his silence on direct examination, and introduced the
{¶46} Even assuming that the State violated the principles set forth in Leach, we do not agree with Abraham‘s assertion that the error was inherently prejudicial. As set forth above, a violation of a defendant‘s right against self-incrimination is subject to harmless-error review. Powell at ¶ 162, citing State v. Thompson, 33 Ohio St. 3d 1, 4-5 (1987). Abraham avers that he was prejudiced by the State‘s error because the evidence of guilt in this case was not overwhelming. He notes that there was no physical evidence and the State‘s case hinged upon the credibility of the victim. Yet, the evidence the State set forth on the rape and gross sexual imposition charges was distinct from the evidence the State set forth on the charges for the illegal use of a minor in a nudity-oriented material or performance and pandering sexually oriented matter involving a minor. While it is true that the State‘s case on the two former charges hinged upon credibility, the State‘s case on the two latter charges did not. In support of the latter two
{¶47} Based on our review of the record, we conclude that the evidence the State introduced on the two charges outweighed any prejudicial effect that resulted from the allegedly improper reference to Abraham‘s silence. Abraham admitted to viewing pornography on his computer, the State uncovered two specific pornographic images on Abraham‘s computer, Abraham admitted that he might have viewed the two images at some point in time, and the State presented expert testimony that the images depicted children. There was overwhelming evidence to establish Abraham‘s guilt with regard to these charges. See Powell at ¶ 162. Moreover, as previously discussed, the allegedly improper reference to Abraham‘s silence was “brief and isolated.” Id. Abraham has not shown that he was prejudiced as a result of Detective Rinear‘s testimony. Thus, the trial court did not abuse its discretion by refusing to declare a mistrial. Abraham‘s first assignment of error is overruled.
III
{¶48} Abraham‘s assignments of error are overruled. The judgment of the Summit County Court of Common Pleas is affirmed.
Judgment affirmed.
We order that a special mandate issue out of this Court, directing the Court of Common Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy of this journal entry shall constitute the mandate, pursuant to
Immediately upon the filing hereof, this document shall constitute the journal entry of judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the period for review shall begin to run.
Costs taxed to Appellant.
BETH WHITMORE
FOR THE COURT
BELFANCE, J.
CONCURRING.
{¶49} I concur. I write separately to briefly discuss Mr. Abraham‘s fifth assignment of error. As noted by both the main and separate opinions, because Mr. Abraham failed to renew his
To prevail on his claim that the trial court erred in denying his motion to sever, the defendant has the burden of demonstrating three facts. He must affirmatively demonstrate (1) that his rights were prejudiced, (2) that at the time of the motion to sever he provided the trial court with sufficient information so that it could weigh the considerations favoring joinder against the defendant‘s right to a fair trial, and (3) that given the information provided to the court, it abused its discretion in refusing to separate the charges for trial.
(Emphasis added.) State v. Schaim, 65 Ohio St. 3d 51, 59 (1992). Furthermore, in analyzing the prejudice prong under Schaim, “a court must determine (1) whether evidence of the other crimes would be admissible even if the counts were severed, and (2) if not, whether the evidence of each crime is simple and distinct.” Id.
{¶50} The record contains Mr. Abraham‘s motion to sever that was considered and denied by the trial court. The motion is less than two pages in length and does not provide any argument explaining how the failure to sever the counts would prejudice him. No hearing was held on Mr. Abraham‘s motion. And while it appears that it is possible additional discussions concerning severance occurred off the record, there is no further information or more detailed argument about the merits of Mr. Abraham‘s motion contained in the trial court record. Thus, given the considerable discretion of the trial court concerning severance and the absence of any detailed information or legal argument provided to the trial court in support of his motion, Mr.
{¶51} On appeal, Mr. Abraham does not explain how his rights were prejudiced as defined in Schaim, nor does he analyze the remaining factors outlined in Schaim in assessing whether the trial court committed a plain error. For example, he does not explain how the brief motion before the trial court provided it with “sufficient information so that it could weigh the considerations favoring joinder against the defendant‘s right to a fair trial[.]” Schaim, 65 Ohio St. 3d at 59. Thus, based upon the record before this Court, I cannot conclude that the trial court committed plain error in denying Mr. Abraham‘s motion to sever.
{¶52} In light of the foregoing, I concur that Mr. Abraham‘s fifth assignment of error is properly overruled.
DICKINSON, J.
DISSENTING.
SEPARATE TRIALS
{¶53} Nadeem Abraham‘s fifth assignment of error is that the trial court incorrectly denied his motion to sever the gross-sexual-imposition and rape counts from the pandering and illegal-use-of-a-minor charges. Before trial, Mr. Abraham moved to sever the counts, “[p]ursuant to Criminal Rule 14 . . . for trial purposes” because “the alleged child pornography has nothing to do with the specific allegations of Rape and Gross Sexual Imposition herein.” The trial court denied his motion. Mr. Abraham renewed his motion at the beginning of the trial, but not at the close of the State‘s case.
{¶54} The majority has correctly concluded that, because Mr. Abraham did not renew his motion to sever at the end of the State‘s case, he forfeited his ability to raise this issue on
{¶55} The majority has not addressed whether Mr. Abraham‘s motion to sever was actually a
{¶56} The difference between a motion under
{¶58} As the majority has noted, “[if] a defendant claims that he was prejudiced by the joinder of multiple offenses, a court must determine (1) whether evidence of the other crimes would be admissible even if the counts were severed, and (2) if not, whether the evidence of each crime is simple and distinct.” State v. Schaim, 65 Ohio St. 3d 51, 59 (1992). I agree that the evidence of each crime in this case was simple and distinct. I do not agree, however, that the fact that Mr. Abraham had pictures of naked children on his computer would have been admissible at a trial on only the rape and gross sexual imposition charges and vice versa.
{¶59} Subject to certain exceptions,
{¶60} As the majority has acknowledged, because there was no physical evidence of the sexual abuse, the jury assessed Mr. Abraham‘s guilt entirely on his and I.D.‘s credibility. During the trial, Mr. Abraham brought out inconsistencies between I.D.‘s testimony and what she told investigators after first reporting the abuse. The fact that Mr. Abraham had pictures of naked children on his computer, however, significantly bolstered her testimony because it verified that Mr. Abraham has a sexual attraction to young children. On the other hand, Mr. Abraham strained his credibility by claiming that he only discovered that there is pornography on the internet because he stumbled across it while looking for the website for BJ‘s Warehouse Club. That issue would not have come up if the counts had been tried separately.
{¶61} Upon review of all the evidence in this case, I believe it was plain error for the trial court to try the child sexual abuse charges at the same time as the pornography charges.
{¶62} Although I would remand this case for separate trials, for double jeopardy purposes it is necessary to address whether the State presented sufficient evidence on each count. Regarding the rape and gross sexual imposition charges, I agree with the majority that I.D.‘s testimony, viewed in a light most favorable to the prosecution, was enough to support his convictions. Regarding the pandering and illegal-use-of-a-minor charges, however, the issue is more complicated.
{¶63} The pandering charge was under
{¶64} The illegal-use-of-a-minor count was charged under
{¶65} According to Detective Sladek, “[u]nallocated space is just extra space that at one time items could have been stored on and they‘ve been deleted from the normal user‘s ability to draw on them again.” He explained that, “[o]nce you delete a file, what the user basically does is click to delete the thing. The computer makes a notation at the beginning of the file that that space is open for storage if needed and the user doesn‘t want to do anything with that file again.” He also explained that the reason a file in unallocated space would not have a “create, access, or modify” date is because “[t]he computer decides that it‘s no longer needed and does not keep those for that file.” He further testified that, if there are no dates associated with a file “and it‘s in the unallocated space, it‘s kind of hard to say how it got there . . . .” See United States v. Flyer, 633 F.3d 911, 918 (9th Cir. 2011) (“Even if retrieved, all that can be known about a file in unallocated space (in addition to its contents) is that it once existed on the computer‘s hard drive. All other attributes—including when the file was created, accessed, or deleted by the user—cannot be recovered.“).
{¶66} In State v. Hurst, 181 Ohio App. 3d 454, 2009-Ohio-983, the Fifth District Court of Appeals recognized “how computers and the internet can create a quagmire for the prosecution of cases involving child pornography.” Id. at ¶ 67. Quoting United States v. Polizzi, 549 F. Supp. 2d 308 (E.D.N.Y. 2008), vacated on other grounds by United States v. Polouizzi, 564 F.3d 142 (2d Cir. 2009), the court explained that “[o]nline child pornography (or any other electronic image) is typically received and viewed via email, downloading, or file sharing, or viewed on an Internet website. Unwanted or unsolicited emails, popularly termed ‘spam,’ are transmitted daily in the billions. Many carry commercial messages, are dubious or disguised in nature and origin, and contain pornographic images, including child pornography, or links to pornographic websites. In one study, ‘more than 40 percent of all pornographic spam either did not alert recipients to images contained in the message or contained false subject lines, thus making it more likely that recipients would open the messages without knowing that pornographic images will appear.’ Opening files—whether received by email or available on a website—in order to view the images may be automatic or manual. Files deliberately downloaded from the Internet and intentionally saved by the user should be distinguished from files automatically stored by the web browser in temporary cache files. ‘The term “downloading” generally refers to the act of manually storing a copy of an image on the hard drive for later retrieval.’ In contrast, ‘[t]he internet cache . . . is an area [on the hard drive] to which the internet browser automatically stores data to speed up future visits to the same websites.’ ‘While you surf the Internet, the computer‘s web browsers keep copies of all the web pages that you view, up to a certain limit, so that the same images can be redisplayed quickly when you go back to them.’ It is possible for sophisticated computer users to access and even ‘delete’ the automatically stored internet cache files, but computer forensic experts are often able to discover any files so deleted.” Id. at ¶ 68-70 (citations omitted).
{¶67} In Hurst, the court noted that, “[i]f your computer is searched, even files that have been dragged to the trash or cached by your browser software are counted as evidence. Some
{¶68} In Hurst, the Court concluded that the evidence supported the inference that the images on Mr. Hurst‘s computer did not appear by accident, noting that he had performed internet searches for “amazing preteen; elite preteens; family incest tree; free young; young porn; innocent youth; preteen angels; and shameless preteens, little angels, top ten Lolita nude and pixyoung.com, teentray.com, tinyteenthongs.info.” State v. Hurst, 181 Ohio App. 3d 454, 2009-Ohio-983, at ¶ 86. In this case, the parties stipulated that “[a]n analysis of the hard drive . . . reveal[ed] the regular presence of cookies containing file names associated with teen pornography and similarly named sites over a two-year period.” There is an important difference, however, between searching for “teen” websites looking for pictures of naked women who are 18 or 19 and searching for “preteen” pornography, as in Hurst.
{¶69} All that the evidence in this case establishes is that, at some point, Mr. Abraham attempted to delete the image of the girl in the bathtub from his hard drive. We do not know how the image got onto his hard drive, when it occurred, whether Mr. Abraham ever viewed the
APPEARANCES:
PETER T. CAHOON and AMANDA T. QUAN, Attorneys at Law, for Appellant.
SHERRI BEVAN WALSH, Prosecuting Attorney, and RICHARD S. KASAY, Assistant Prosecuting Attorney, for Appellee.