STATE OF OHIO v. ALAN D. CHRISTIAN
C.A. No. 27205
IN THE COURT OF APPEALS NINTH JUDICIAL DISTRICT
Dated: May 6, 2015
State v. Christian, 2015-Ohio-1720.
CARR, Judge.
APPEAL FROM JUDGMENT ENTERED IN THE COURT OF COMMON PLEAS COUNTY OF SUMMIT, OHIO CASE No. CR 12 02 0553
Dated: May 6, 2015
CARR, Judge.
{¶1} Defendant-Appellant, Alan Christian, appeals from his convictions in the Summit County Court of Common Pleas. This Court affirms.
I.
{¶2} In March 2010, investigators received a tip that a certain IP address was sharing files containing child pornography with other users over the internet. Investigator David Frattare connected to the target IP address and was able to download several video files that contained child pornography. The IP address was later linked to Christian, and the police executed a search warrant at his home. During the search, the police seized a computer tower from Christian’s bedroom. The computer tower was found to contain multiple videos depicting child pornography. Christian admitted ownership of the computer tower and was arrested in connection with the child pornography that was found on it.
{¶4} Christian now appeals from his convictions and raises three assignments of error for our review.
ASSIGNMENT OF ERROR I
THE STATE OF OHIO FAILED TO INTRODUCE SUFFI[CI]ENT EVIDENCE TO SUSTAIN THE CONVICTIONS IN THIS CASE.
{¶5} In his first assignment of error, Christian argues that his convictions are based on insufficient evidence. Specifically, he argues that the State failed to prove that he (1) had knowledge of the character of the illicit files on his computer, or (2) created, recorded, photographed, filmed, developed, reproduced, or published the files. We disagree.
{¶6} “Raising the question of whether the evidence is legally sufficient to support the jury verdict as a matter of law invokes a due process concern.” State v. Diar, 120 Ohio St.3d 460, 2008-Ohio-6266, ¶ 113, citing State v. Thompkins, 78 Ohio St.3d 380, 386 (1997).
An appellate court’s 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 defendant’s 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.
State v. Jenks, 61 Ohio St.3d 259 (1991), paragraph two of the syllabus. “The test for sufficiency requires a determination of whether the State has met its burden of production at trial.” State v. Edwards, 9th Dist. Summit No. 25679, 2012-Ohio-901, ¶ 7.
A person acts recklessly when, with heedless indifference to the consequences, the person disregards a substantial and unjustifiable risk that the person’s 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, the person disregards a substantial and unjustifiable risk that such circumstances are likely to exist.
R.C. 2901.22(C). A violation of R.C. 2907.322(A)(1) is a second-degree felony. R.C. 2907.322(C).
{¶8} R.C. 2907.322(A)(5) provides that “[n]o 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 * * *.” Possession is “‘a voluntary act if the possessor knowingly procured or received the thing possessed, or was aware of the possessor’s control of the thing possessed for a sufficient time to have ended possession.’” Butler, 2009-Ohio-1866, at ¶ 18, quoting R.C. 2901.21(D)(1). “A person acts knowingly, regardless of purpose, when the person is aware that
the person’s conduct will probably cause a certain result or will probably be of a certain nature. A person has knowledge of circumstances when the person is aware that such circumstances probably exist.” R.C. 2901.22(B). A violation of R.C. 2907.322(A)(5) is a fourth-degree felony. R.C. 2907.322(C).
{¶10} Investigator Frattare testified that his office maintains computer programs that are designed to seek out child pornography on peer to peer networks and identify a target user’s IP address. He explained that an IP address is a string of numbers that an internet service provider assigns to an authorized user. Because internet service providers keep track of the IP addresses they assign, a known IP addresses can be used to identify an authorized user. In March 2010, Investigator Frattare received a tip that a specific IP address was sharing child pornography over a peer to peer network. The IP address was later traced to Christian at his home address.
{¶13} Richard Warner testified that he is an agent for the Ohio Bureau of Criminal Investigation (“BCI”) and belongs to its Cyber Crimes Unit as well as its Crimes Against Children Unit. After the Twinsburg Police Department contacted him for assistance, Warner began investigating Christian and ultimately secured a search warrant for his residence. He executed the warrant in October 2010 and seized two computers from Christian’s bedroom. Specifically, he seized a laptop that he found on Christian’s desk and a computer tower and monitor that he found inside a cabinet. Christian admitted that he owned both computers, but told Warner that he had not used the computer tower in several months because it was broken. Warner later analyzed the laptop and computer tower to determine whether either contained evidence of child pornography. Although the laptop did not contain any child pornography, the computer tower did.
- “9yo littlegirl displays her sweet yng cunt – PART 2 – Pussy licking now (2min7sec) (Orig duogi11) – reelkiddymov lolita preteen young incest kiddie porno sex XXX ddoggprn.mpg” was created on November 4, 2008, at 12:03 a.m., last written on the same date at 12:26 a.m., and last accessed on June 28, 2010, at 6:26 p.m.
- “X-Illegal (underage xxx r@ygold pedo nude fuck tiny babyj lolita sister incest girl).mpg” was created on May 6, 2009, at 6:58 p.m., last written on the same date at 7:26 p.m., and last accessed on June 27, 2010, at 9:27 p.m.
- “(pthc) Family2 – ReelFamilySex – entire clip -- Hot Mother licks her 8yo Daughters sweet pussy as her brother fucks her – r@ygold -- ddoggprn – incest REELKIDDYMOV.mpg” was created on January 21, 2009, at 2:39 a.m., last written on the same date at 3:02 a.m., and last accessed on June 28, 2010, at 2:46 p.m.
- “-Best Vicky BJ & handjob with sound (r@ygold pedo reelkiddymov underage illegal lolita daughter incest XXX oral handjob) – Copy.mpg” was created on November 4, 2008, at 12:04 a.m., last written on the same date at 1:47 a.m., and last accessed on June 28, 2010, at 1:49 p.m.
- “Taboo PTHC Incest Pedo – Mom Fondles Son.mpg” was created on August 26, 2008, at 11:11 a.m., last written on the same date at 11:17 a.m., and last accessed on May 26, 2010, at 2:08 a.m.
- “NOBULL_family fun dad teaches bro and sis abt 9, 10, kid sex incest pedophilia boy girl 12.38.mpg” was created November 4, 2008, at 12:02 a.m., last written on the same date at 1:56 a.m., and last accessed on May 8, 2010, at 11:52 a.m.
- “Babysitter and Girl 8yo – Having Sex With Older Sister (Anal Toys!!!) Incest – Pedo Mom Helps Dad Fuck His Tiny Daughter (B) (Pthc – 20m15s).mpg” was created July 2, 2009, at 1:40 a.m., last written on the same date at 2:31 a.m., and last accessed on May 30, 2010, at 1:50 a.m.
Warner explained that a file’s creation date is the date that it is first introduced to the computer. Assuming no further changes are made to the file, a file’s last written date is typically the date when the file finishes downloading to the computer. Finally, a file’s last accessed date is the last date that the file was touched by either a user or program. The last accessed date includes instances where a user sits down and views the file, but also includes instances where a remote user on a peer to peer network accesses the shared file.
{¶17} In analyzing Christian’s computer, Warner also compiled a list of search terms that had been entered into the computer to search for information by way of Internet Explorer (e.g., through search engines such as Google and Yahoo). He explained that a computer maintains a registry on which it records search terms and sorts the terms by date, according to the date on which the user stopped entering search terms. State’s Exhibit 25 was a 41-page document that displayed the list of search terms that Warner had compiled. The list spanned numerous search strings from 2008 and 2009. The following terms were included on the list of search terms that Warner uncovered on Christian’s computer: “Preteen Nudists,” “young kid sex,” “lil kids fucking,” and “pthc,” which Warner defined as an abbreviation for “preteen hardcore.” The list also contained a great deal of search terms related to adult pornography and music.
{¶19} Christian first argues that his convictions are based on insufficient evidence because the State failed to prove that he had any knowledge of the character of the videos on his computer. See R.C. 2907.322(A). He argues that there was no evidence that he was the one to download the files or that the videos had ever been viewed after they were downloaded. Because someone else could have downloaded the files or the files could have been downloaded accidentally, Christian argues that his convictions are based on insufficient evidence.
same probative value.” Id. at paragraph one of the syllabus. All of the evidence here, when viewed collectively, was such that a rational trier of fact could have concluded that Christian had knowledge of the character of the illicit videos on his computer.
MR. CHRISTIAN’S CONVICTIONS ARE AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.
{¶22} In his second assignment of error, Christian argues that his convictions are against the manifest weight of the evidence. We disagree.
{¶23} A conviction that is supported by sufficient evidence may still be found to be against the manifest weight of the evidence. Thompkins, 78 Ohio St.3d at 387.
In determining whether a criminal conviction is against the manifest weight of the evidence, an appellate court 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). “When a court of appeals reverses a judgment of a trial court on the basis that the verdict is against the weight of the evidence, the appellate court sits as a ‘thirteenth juror’ and disagrees with the fact[-]finder’s resolution of the conflicting testimony.” Thompkins at 387, quoting Tibbs v. Florida, 457 U.S. 31, 42 (1982). This discretionary power should be exercised only in exceptional cases where the evidence presented weighs heavily in favor of the defendant and against conviction. Thompkins, 78 Ohio St.3d at 387. Accord Otten at 340.
{¶25} Mark Vassel, the owner of a computer forensic consulting firm, testified as an expert for the defense. Vassel agreed that Christian’s computer had child pornography on it, but noted that the computer did not have a password. Based on information Vassel received from the defense, it was his understanding that as many as 30 people had access to the computer. He testified that, without a password, anyone could have sat down and downloaded the illicit files. Moreover, he noted that it was impossible to know whether the files had ever been viewed. He explained that a file’s last accessed date could simply be the date that a remote user downloaded the file over LimeWire.
{¶26} Anthony Christian, Christian’s father, testified that Christian kept the computer at issue in the basement during 2008 and 2009. He testified that Christian and his friends were interested in a career in the music industry, so they spent a lot of time downloading music on the computer. According to Anthony Christian, his son was not always in the basement when his friends were using the computer and he frequently had friends stay over for the night. It was his belief that the illicit files on the computer had been downloaded inadvertently.
{¶27} Having reviewed the record, we cannot conclude that Christian’s convictions are against the manifest weight of the evidence. Christian’s eight convictions only required the jury to find that he: (1) had knowledge of the character of the seven videos on his computer; (2) recklessly published the videos by making them available to others for download; and (3) knowingly possessed or controlled the videos. See R.C. 2097.322(A)(1), (5). See also Butler, 2009-Ohio-1866, at ¶ 7-27. While the evidence against Christian was circumstantial in nature, it does not weigh heavily against his convictions. See Thompkins, 78 Ohio St.3d at 387.
{¶29} Warner testified that he found several viruses on Christian’s computer, but that none of the viruses were the type that would have downloaded child pornography onto the computer. Rather, a user had to have downloaded the illicit files from LimeWire. As previously set forth, Christian admitted that he used LimeWire to download videos, music, and adult pornography. He also admitted that he recognized at least one of the illicit videos. Christian told Warner that he would see the “Best Vicky” video when he opened his Media Player, but that he would skip past the video instead of watching it. Warner testified that the “Best Vicky” video had a thumbnail image next to its file name that was consistent with child pornography.
{¶30} Each of the seven illicit videos on Christian’s computer had extremely graphic file names. As a frequent user of the computer, Christian would have been in a position to see the explicit file names associated with the videos and realize that they were in his shared folder. Warner also determined that graphic search terms had been entered on Christian’s computer over the course of two years. Those search terms appeared alongside search terms for music and adult pornography, both of which Christian admitted accessing on his computer. Although Christian’s laptop computer did not contain any child pornography, Christian told Warner that he had only procured the laptop a short time before the police executed their warrant. Accordingly, Christian did not own the laptop when the illicit files at issue were downloaded.
ASSIGNMENT OF ERROR III
MR. CHRISTIAN’S RIGHT TO A FAIR TRIAL AND RIGHT TO DUE PROCESS OF LAW, AS GUARANTEED BY THE UNITED STATES CONSTITUTION AND THE OHIO CONSTITUTION, WERE VIOLATED BY THE INTRODUCTION OF IRRELEVANT AND UNFAIRLY PREJUDICIAL ALLEGED OTHER ACT EVIDENCE.
{¶32} In his third assignment of error, Christian argues that the trial court erred by admitting irrelevant and highly prejudicial other acts evidence. Specifically, he argues that the court should have ordered the redaction of State’s Exhibit 1 to remove any references to marijuana and adult pornography.
{¶33} Even assuming that the court erred by admitting an unredacted version of State’s Exhibit 1, we must conclude that the error was harmless. See Crim.R. 52(A) (errors that do not affect substantial rights “shall be disregarded”). State’s Exhibit 1 was the full investigative report that Warner completed in conjunction with his analysis of Christian’s computer. The exhibit included the list of search terms that Warner found on the computer. Warner testified about several of the pornographic search terms on the list, and Christian did not object to his testimony. See State v. Hartney, 9th Dist. Summit No. 25078, 2010-Ohio-4331, ¶ 27 (harmless error in actual admission of report where report was cumulative of the testimony presented at trial). More importantly, the entirety of the search term list included in State’s Exhibit 1 was duplicative of State’s Exhibit 25. Exhibit 1 contained more information that just the search term list, but Exhibit 25 was strictly limited to the list. Exhibit 25 also contained a larger list than State’s Exhibit 1 because it encompassed a larger time frame. Christian did not object to either Warner’s testimony about the contents of State’s Exhibit 25 or to the actual admission of the exhibit. Because State’s Exhibit 1 was merely cumulative of the other evidence presented at trial, any error in its admission was harmless. See State v. Caldwell, 9th Dist. No. 26306, 2013-Ohio-1417, ¶ 11, citing State v. Conway, 109 Ohio St.3d 412, 2006-Ohio-2815, ¶ 59. Accord Hartney at ¶ 27. Thus, Christian’s third assignment of error is overruled.
III.
{¶34} Christian’s assignments of error are overruled. The judgment of the Summit County Court of Common Pleas is affirmed.
Judgment affirmed.
There were reasonable grounds for this appeal.
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 App.R. 27.
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. App.R. 22(C). The Clerk of the Court of Appeals is instructed to mail a notice of entry of this judgment to the parties and to make a notation of the mailing in the docket, pursuant to App.R. 30.
Costs taxed to Appellant.
DONNA J. CARR
FOR THE COURT
HENSAL, P. J.
WHITMORE, J.
CONCUR.
APPEARANCES:
RONALD L. FREY, Attorney at Law, for Appellant.
SHERRI BEVAN WALSH, Prosecuting Attorney, and RICHARD S. KASAY, Assistant Prosecuting Attorney, for Appellee.