STATE OF OHIO, Plaintiff-Appellee -vs- PAUL MICHAEL CONANT, Defendant-Appellant
Case No. 13CA55
COURT OF APPEALS RICHLAND COUNTY, OHIO FIFTH APPELLATE DISTRICT
April 23, 2014
2014-Ohio-1739
Hon. W. Scott Gwin, P.J.; Hon. John W. Wise, J.; Hon. Patricia A. Delaney, J.
CHARACTER OF PROCEEDING: Criminal appeal from the Richland County Court of Common Pleas, Case No. 2012-CR-851. JUDGMENT: Affirmed.
For Plaintiff-Appellee
JAMES J. MAYER, JR. PROSECUTING ATTORNEY JILL COCHRAN 38 South Park Street Mansfield, OH 44902
For Defendant-Appellant
RANDALL FRY 10 West Newlon Place Mansfield, OH 44902
{¶1} Appellant Paul Conant [“Conant”] appeals his convictions and sentences for three counts of Pandering Sexually Oriented Matter Involving a Minor, in violation of
Facts and Procedural History
{¶2} On October 6, 2011, Captain Eric Bosko of the Richland County Sherriff’s Department received a letter and report from the Internet Crimes Against Children (“ICAC”) agency in Cuyahoga County indicating that they had information that child pornography had been downloaded at an IP address located in Richland County. A search warrant was obtained based on the information provided by ICAC for the residence associated with the IP address in question, 1536 Pear Place, Mansfield, Ohio. The search warrant was executed on October 7, 2011. A computer was removed from the basement of the home. A subsequent search of the computer at the Bureau of Criminal Investigation [“BCI”] located four videos of potential child pornography, 186 images of potential child pornography, and 494 images of young females modeling clothing.
{¶3} As a result of the investigation started by ICAC, Conant was indicted on December 7, 2012 on three counts of Pandering Sexually Oriented Matter Involving a Minor, and fifteen counts of Pandering Obscenity Involving a Minor.
{¶4} During Conant’s jury trial, Captain Bosko testified that the owner of 1536 Pear Place, Mansfield, Ohio was David Conant, Jr., the eighty-seven year old father of
{¶5} Captain Bosko further testified there were two computer areas in the home, one in the kitchen and one in the basement. Appellant’s father told the officer’s conducting the search that the computer in the kitchen belonged to him and he was the sole user of that computer. The other computer set-up was down in the basement. Captain Bosko testified that appellant’s father stated that the computer in the basement belonged to appellant. Located near the basement computer were several pieces of mail addressed to appellant, as well as other items that were identified by David Conant, Jr. as belonging to appellant.
{¶6} The computers were then sent to BCI where they were examined by Natasha Branham, a computer forensic specialist. Appellant‘s computer, identified as Evidence Item 1 was found to have three hard drives located within the generic computer tower. “Hard Disk One” had one terabyte [“1TB’] of memory and was running Windows 7 Home Premium operating system. Programs called Frostwire and/or Limewire were loaded onto this computer. These programs are used for peer-to-peer sharing. Ms. Branham offered background information on peer-to peer-file sharing and computer data storage. During her testimony, Ms. Branham explained that when someone uses the Limewire or Frostwire program, they are presented with a search box. The user then types a search term in the box and the program searches the files of other users for these search term or terms. Any files with names containing those search terms then appear in a list. The user may then select files from the list by either selecting individual files or selecting a range of files. The user is then able to click the
{¶7} This particular drive was found to be password protected with multiple possible combinations returned when attempts were made to crack the password. The registered owner of the Windows 7 Home Premium software was “Mikie.” The operating system was set to a default administrator. Located on this particular drive were four videos of potential child pornography and eighty-two images of potential child pornography. The file names of the four videos included words like “PTHC,” “pedo,” “Lolita,” and “kiddie hunt.” Two of the videos were located within Frostwire/Limewire folder. The photographs were not located within the Frostwire/Limewire folder. They were located in “thumb [cache] DV file,” indicating that the images had been viewed through Windows Explorer. The others were located in an “orphan folder.” All of the counts in the complaint came from the images and videos located within Hard Drive One.
{¶8} “Hard Drive Two” was a 250-gigabyte Seagate hard drive. The operating system was Windows XP Professional. Paul M. Conant was the registered owner of the Windows XP software. The administrator account on this hard drive had been changed to a nickname of “Mikie” and full name of Mike Conant. “Hard Drive Three” was also a 250-gigabyte hard drive. It did not contain an operating system and was used simply for storage. Located on Hard Drive Three were 104 images of potential child pornography and 494 images of young females modeling clothing in various stages of undress but not nude.
{¶10} Melissa Donathan, an acquaintance of appellant, testified that she met appellant in April of 2012. During this time, Ms. Donathan was living with her mother, Connie Donathan. Connie Donathan was friends with appellant through work. Appellant was also friends with Connie‘s landlord and did handyman work for him on occasion. When Connie‘s garage wall collapsed, appellant came over to help fix it, which is how Ms. Donathan became acquainted with the appellant.
{¶11} One day, while appellant was working on tearing down the garage for Connie Donathan, a third party asked appellant if he had been informed whether the police found anything as a result of the search warrant that had been executed the previous October at appellant’s home. Appellant‘s response was that there was nothing incriminating for the raid to even have been conducted. He said that a “black bitch on the force had a hard on for him and that all the good stuff was on his laptop.” Appellant expressed the belief that all of the stuff that was on his computer was legitimate because if anything was on the computer, it had come from the internet and if it is on the internet then it was legal.
{¶12} Appellant testified on his own behalf. Appellant presented his debit card statements to verify that he was in the state of Texas from December to April of 2011. Appellant admitted that he owned a laptop but stated it was stolen in December of 2012
{¶13} Appellant’s father, David Conant Jr. testified that he did winter in Texas from October to April. When he is in Texas, his granddaughter, Sharon Little or his friends, Robert and Pam Ulette pick up the mail and check the house and have keys for that purpose. He testified that he has known these people for a long time and they are all trustworthy. David did remember that appellant went down to Texas with him in 2011 but did not think that they went down or came back together. David testified that there were people in and out of the house a lot.
{¶14} During his jury trial, Conant stipulated that the videos and images constituted sexually oriented matter and/or obscenity and that they depicted minors. As a result, the exhibits relating to the images and videos were never submitted to the jury. (2T. at 185-188).
{¶15} The jury returned a verdict of guilty on all eighteen counts of the indictment. Appellant was sentenced to twelve months on each count with counts one through five consecutive to each other and counts six through eighteen concurrent to each other and to the first five counts for a total prison sentence of five (5) years.
Assignment of Error
{¶16} Conant has raised one assignment of error,
{¶17} “I. THE VERDICT OF GUILTY RENDERED AGAINST THE APPELLANT FOR COMMITTING THE CRIMES OF PANDERING SEXUALLY ORIENTED MATTER INVOLVING A MINOR AND PANDERING OBSENITY[sic.] INVOLVING A MINOR WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.”
Analysis
{¶18} Our review of the constitutional sufficiency of evidence to support a criminal conviction is governed by Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), which requires a court of appeals to determine whether “after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Id.; see also McDaniel v. Brown, 558 U.S. 120, 130 S.Ct. 665, 673, 175 L.Ed.2d 582(2010) (reaffirming this standard); State v. Fry, 125 Ohio St.3d 163, 926 N.E.2d 1239, 2010–Ohio–1017, ¶146; State v. Clay, 187 Ohio App.3d 633, 933 N.E.2d 296, 2010–Ohio–2720, ¶68.
{¶19} Weight of the evidence addresses the evidence‘s effect of inducing belief. State v. Thompkins, 78 Ohio St.3d 380, 386-387, 678 N.E.2d 541 (1997), superseded by constitutional amendment on other grounds as stated by State v. Smith, 80 Ohio St.3d 89, 684 N.E.2d 668, 1997-Ohio–355. Weight of the evidence concerns “the inclination of the greater amount of credible evidence, offered in a trial, to support one
{¶20} 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. Id. at 387, 678 N.E.2d 541, quoting Tibbs v. Florida, 457 U.S. 31, 42, 102 S.Ct. 2211, 72 L.Ed.2d 652 (1982). However, an appellate court may not merely substitute its view for that of the jury, but must find that “‘the jury 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. Thompkins, supra, 78 Ohio St.3d at 387, quoting State v. Martin, 20 Ohio App.3d 172, 175, 485 N.E.2d 717, 720–721(1st Dist. 1983). Accordingly, reversal on manifest weight grounds is reserved for “‘the exceptional case in which the evidence weighs heavily against the conviction.’” Id.
“[I]n determining whether the judgment below is manifestly against the weight of the evidence, every reasonable intendment and every reasonable presumption must be made in favor of the judgment and the finding of facts.
* * *
“If the evidence is susceptible of more than one construction, the reviewing court is bound to give it that interpretation which is consistent with the verdict and judgment, most favorable to sustaining the verdict and judgment.”
Seasons Coal Co., Inc. v. Cleveland, 10 Ohio St.3d 77, 80, 461 N.E.2d 1273 (1984), fn. 3, quoting 5 Ohio Jurisprudence 3d, Appellate Review, Section 60, at 191–192 (1978).
{¶21} The parties agreed in the case at bar that the videos and the photographs were sexually oriented material and/or obscene and that they depicted minors. (2T. at 185-188). Conant’s argument is that there was insufficient evidence to prove beyond a reasonable doubt that he had “knowledge” and “possession” of the material found on the computer located in the basement of the home.
{¶22} In the case at bar, Conant was charged with fifteen counts of Pandering Obscenity Involving Minors.
No person, with knowledge of the character of the material or performance involved, shall do any of the following:
* * *
(5) Buy, procure, possess, or control any obscene material, that has a minor as one of its participants
{¶23} Conant was also charged with three counts of Pandering Sexually Oriented Matter Involving a Minor.
No person, with knowledge of the character of the material or performance involved, shall do any of the following:
* * *
(5) Knowingly solicit, receive, purchase, exchange, possess, or control any material that shows a minor participating or engaging in sexual activity, masturbation, or bestiality.
{¶24}
{¶25} Conant argues the state presented no evidence that he downloaded or viewed the files at issue. He testified at trial that he had no knowledge of the pictures or videos at issue. Conant asserts that none of the state’s computer experts could testify that he had downloaded or even viewed the pictures and videos.
{¶26}
(B) A person acts knowingly, regardless of his purpose, when he is aware that his conduct will probably cause a certain result or will probably
be of a certain nature. A person has knowledge of circumstances when he is aware that such circumstances probably exist.
{¶27} Whether a person acts knowingly can only be determined, absent a defendant‘s admission, from all the surrounding facts and circumstances, including the doing of the act itself.” (Footnotes omitted). State v. Huff, 145 Ohio App.3d 555, 563, 763 N.E.2d 695(1st Dist. 2001). Thus, “[t]he test for whether a defendant acted knowingly is a subjective one, but it is decided on objective criteria.” State v. McDaniel, 2nd Dist. Montgomery No. 16221, 1998 WL 214606(May 1, 19998) (citing State v. Elliott, 104 Ohio App.3d 812, 663 N.E.2d 412(10th Dist. 1995)).
{¶28} In the case at bar, Conant stipulated that the items found on his computer were sexually oriented material and/or obscene and that they depicted minors. (2T. at 185-188). Thus, the character of the material or performance as obscene and as depicting minors has been established. What Conant is really arguing, therefore, is the state failed to prove that he “possessed” the material in the sense that he downloaded the pictures and videos.
{¶29}
{¶31} If the state relies on circumstantial evidence to prove an essential element of an offense, it is not necessary for “such evidence to be irreconcilable with any
{¶32} In the case at bar, only two people live in the house on 1536 Pear Place, David Conant Jr. and appellant. Appellant admitted that the computer in the basement belonged to him and his father had not used that computer and rarely went into the basement except to watch television if it was too hot upstairs. Items of mail and other personal items of appellant were located near the computer when the search warrant was executed. Appellant admitted that all of the software and programs found on the computer were registered to him.
{¶34} Appellant argued that other people had access to the computer. The only testimony to that was from David Conant Jr. who testified that his granddaughter and his good friends looked after his home while he is wintering in Texas. He further testified that there are always people in and out of the house. However, there was no testimony that anyone else had access to the computer simply because he or she was inside of the house. Again, the hard drive in question was password protected.
{¶35} Ultimately, “the reviewing court must determine whether the appellant or the appellee provided the more believable evidence, but must not completely substitute its judgment for that of the original trier of fact ‘unless it is patently apparent that the fact finder lost its way.’” State v. Pallai, 7th Dist. Mahoning No. 07 MA 198, 2008-Ohio-6635, ¶31, quoting State v. Woullard, 158 Ohio App.3d 31, 2004-Ohio-3395, 813 N.E.2d 964
{¶36} The weight to be given to the evidence and the credibility of the witnesses are issues for the trier of fact. State v. DeHass, 10 Ohio St.2d 230, 227 N.E.2d 212(1967), paragraph one of the syllabus; State v. Hunter, 131 Ohio St.3d 67, 2011-Ohio-6524, 960 N.E.2d 955, ¶118. Accord, Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 86 L.Ed. 680 (1942); Marshall v. Lonberger, 459 U.S. 422, 434, 103 S.Ct. 843, 74 L.Ed.2d 646 (1983).
{¶37} The jury as the trier of fact was free to accept or reject any and all of the evidence offered by the parties and assess the witness’s credibility. “While the jury may take note of the inconsistencies and resolve or discount them accordingly * * * such inconsistencies do not render defendant‘s conviction against the manifest weight or sufficiency of the evidence.” State v. Craig, 10th Dist. Franklin No. 99AP-739, 1999 WL 29752 (Mar 23, 2000) citing State v. Nivens, 10th Dist. Franklin No. 95APA09-1236, 1996 WL 284714 (May 28, 1996). Indeed, the jury need not believe all of a witness’ testimony, but may accept only portions of it as true. State v. Raver, 10th Dist. Franklin No. 02AP-604, 2003-Ohio-958, ¶21, citing State v. Antill, 176 Ohio St. 61, 67, 197 N.E.2d 548 (1964); State v. Burke, 10th Dist. Franklin No. 02AP-1238, 2003-Ohio-2889, citing State v. Caldwell, 79 Ohio App.3d 667, 607 N.E.2d 1096 (4th Dist. 1992).
{¶38} We find that this is not an “‘exceptional case in which the evidence weighs heavily against the conviction.’” Thompkins, 78 Ohio St.3d at 387, 678 N.E.2d 541, quoting Martin, 20 Ohio App.3d at 175, 485 N.E.2d 717. The jury neither lost his way nor created a miscarriage of justice in convicting Conant of the charges.
{¶39} Based upon the foregoing and the entire record in this matter, we find Conant’s convictions were not against the sufficiency or the manifest weight of the evidence. To the contrary, the jury appears to have fairly and impartially decided the matters before them. The jury as a trier of fact can reach different conclusions concerning the credibility of the testimony of the state’s witnesses and Conant. This court will not disturb the jury‘s finding so long as competent evidence was present to support it. State v. Walker, 55 Ohio St.2d 208, 378 N.E.2d 1049 (1978). The jury heard the witnesses, evaluated the evidence, and was convinced of Conant’s guilt.
{¶40} Finally, upon careful consideration of the record in its entirety, we find that there is substantial evidence presented which if believed, proves all the elements of the crimes beyond a reasonable doubt.
By Gwin, P.J.,
Wise, J., and
Delaney, J., concur