STATE OF OHIO v. HASAN MALIK DAVIS
No. 105523
Court of Appeals of Ohio, EIGHTH APPELLATE DISTRICT, COUNTY OF CUYAHOGA
December 21, 2017
State v. Davis, 2017-Ohio-9169
MARY J. BOYLE, PRESIDING JUDGE
AFFIRMED
Criminal Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CR-15-598147-A
BEFORE: Boyle, P.J., S. Gallagher, J., and Jones, J.
RELEASED AND JOURNALIZED: December 21, 2017
Thomas A. Rein
820 West Superior Avenue, Suite 800
Cleveland, Ohio 44113
ATTORNEYS FOR APPELLEE
Michael C. O’Malley
Cuyahoga County Prosecutor
BY: Carl Sullivan
Holly Welsh
Assistant County Prosecutors
Justice Center, 9th Floor
1200 Ontario Street
Cleveland, Ohio 44113
{¶1} Defendant-appellant, Hasan Malik Davis, appeals his convictions and
sentence. On appeal, he raises three assignments of error:
- 1. The trial court erred by failing to grant a judgment of acquittal, pursuant to Crim.R. 29(a), on the charges, and thereafter entering a judgment of conviction of that offense as those charges were not supported by sufficient evidence, in violation of defendant’s right to due process of law, as guaranteed by the Fourteenth Amendment to the United States Constitution.
- 2. Appellant’s convictions are against the manifest weight of the evidence.
- 3. The trial court erred by ordering convictions and a consecutive sentence for separate counts because the trial court failed to make a proper determination as to whether those offenses are allied offenses pursuant to R.C. 2941.25 and they are part of the same transaction under R.C. 2929.14.
{¶2} Finding no merit to his appeal, we affirm.
I. Procedural History and Factual Background
{¶3} On August 27, 2015, the Cuyahoga County Grand Jury indicted Davis for 13
counts of pandering sexually oriented matter involving a minor in violation of R.C.
2907.322(A)(1), 11 counts of illegal use of minor in nudity oriented material or
performance in violation of R.C. 2907.323(A)(1), 6 counts of pandering sexually oriented
matter involving a minor in violation of R.C. 2907.322(A)(5), and 1 count of possessing
criminal tools in violation of R.C. 2923.24(A). The counts for pandering sexually
oriented material and illegal use of a minor were tried before a jury. Davis waived his
right to a jury trial as to the remaining count, possessing criminal tools, which was
bifurcated and tried to the bench. The following evidence was presented at trial.
{¶4} On March 17, 2015, Detective Beth Crano of the Cuyahoga County
Prosecutor Office’s Internet Crimes Against Children Task Force (“ICAC”) received a
“cyber tip” from the National Center for Missing and Exploited Children. The tip
concerned images of child pornography that was found in a Sky Drive account associated
with a particular email address.1
After confirming that the images were child
pornography, Detective Crano subpoenaed the internet service provider, Time Warner
Cable, who informed Detective Crano that the IP address listed in the cyber tip was
assigned to a specific address in Lyndhurst, Ohio. Time Warner Cable also informed
Detective Crano that the IP address’s subscriber was Davis and that a separate personal
email address and a telephone number were listed as well. Detеctive Crano then contacted
the United States Postal Service, who informed Detective Crano that Davis and Brenda
Mitchell, Davis’s mother, received mail at the Lyndhurst address. After performing
background checks and conducting surveillance, investigators obtained a search warrant for
the residence.
and other law enforcement agencies executed the search warrant and found Davis inside.
Detectives took photographs and searched a number of electronic devices in thе residence,
including a Samsung Notebook laptop in Davis’s bedroom, a Samsung Note 4 mobile cell
phone, a Gateway NV Series laptop, a Sandisk Cruzer Glide 16,2 and a Sony Playstation 4.
Forensic examiners performed on-scene previews of the information on those devices and
located the images listed in the cyber tip on Davis’s Samsung laptop computer.
Specifically, forensic examiners located a folder, titled “Japan WWE,” on the Samsung
laptop that contained a number of subfolders, including one titled “Little.”3
Inside that
subfolder, forensic examinеrs located approximately 30 images of child pornography, some
of which were the images identified in the cyber tip. Examiners also found the images
saved onto the Sandisk Cruzer and located additional images of nude children on Davis’s
Gateway laptop.4
Crano and a special agent from the United States Secret Service interviewed Davis. The
interview was video and audio recorded and played before the jury at trial. During the
interview, Davis admitted that he viewed pornography and that he visitеd pornographic
websites, such as PornHub, xHamster, and motherless.com.5
Davis confirmed that the
email address listed in the cyber tip belonged to him and that all of the electronic devices
seized from the residence were his, but initially denied saving any pornography or having
any child pornography on those devices. Later during the interview, however, Davis
confirmed that certain folders on his computer contained pornography, including “Models”
and “Random Girls.” He also confirmed that he recently created a “throw-off” folder
titled, “Japan WWE.” While he initially claimed that he did not know what was in that
folder, he later told the investigators that the file contained a handful of subfolders. When
the investigators told Davis that they found approximately 30 images of child pornography
within the subfolder, “XXX,” as well as on his phone, he told them that he obtained the
images from another user on motherless.com. Davis explained that the user sent him a file
containing about 800 images, “a lot” of which was child pornography and that he saved that
file containing those images to his laptop. Davis said that in some of the images he saw
the children were clearly under the age of 18, were all different races, were naked, and
in some of those images, were having sex with adult males. Davis said that once he saw
some of those images, he saved them on his laptop in his “Pictures” folder and that he took
the images from the Pictures folder and dragged them into the “JapanWWE” folder. He
stated that all of the images of child pornography that he saved were within the subfolder
titled “Little.” When asked why he saved the images of child pornography, Davis said he
did not know and that, after first seeing it, he was shocked. He then stated that he should
have deleted it.
professional backgrounds and the above-described events. Based on some discrepancies
between the dates listed in the indictment and those presented during the officers’
testimonies, the state moved to dismiss Counts 4-12, pandering sexually oriented matter
involving a minor, and Counts 19-23, illegal use of minor in nudity oriented material or
performance. The court granted the state’s motion.
{¶8} The state then called Special Investigator Howell, the computer forensics
specialist who performed a search of Davis’s electronic devices. He testified that the
Samsung laptop computer had a folder titled “Users” that was created by the user,
Hassi_000. Howell explained that a user can create his own folders — which he referred
to as “user-directed folders” — in addition to those already created by the computer’s
operating system. Inside the Users folder were a number of standard folders, one of which
was labeled “Pictures.” The Pictures folder contained a user-directed subfolder titled
“Japan WWE,” which then contained a subfolder titled, “XXX.” That folder then contained
nine user-dirеcted subfolders, one of which was “Little.” Special Investigator Howell
testified that the eight other user-directed subfolders within “XXX” seemed to accurately
describe their contents. For example, Howell testified that the subfolder labeled
“Cartoon” contained animation images, the subfolder labeled “Models” contained
Contest” contained images “indicative of the title.”
{¶9} Howell then identified the images of child pornography that were located
within the folder labeled “Little.” Howell testified that the files wеre originally from the
computer’s folder labeled “Downloads” and that the files in that folder would likely have
come from the internet after being downloaded by a user. He stated that the files were
received or downloaded into the Downloads folder in October 2014. Howell explained
that the files were originally part of a compressed file, which makes it easier to send and
receive a number of files over the internet. Howell also testified that the contents of the
Downloads folder will remain in that folder unless the user takes other aсtion, such as
moving or copying the files into another location. To move the files from the Downloads
folder, Howell stated that the files needed to be “unzipped,” which meant that the files
needed to be decompressed. Once unzipped, each file’s title as well as a thumbnail image
of each file would appear, allowing the user to preview the images.6
Howell did admit later, however, that he did not look into whether the files had thumbnail images and that a
user could opt out of having the thumbnail images displayed. Further, on
cross-examinаtion, Howell stated that he could not name the original folder or location
from where the images were copied on the computer before being put into the Little folder.
March 21, 2014, June 16, 2014, and February 25, 2015, and Howell described March 21,
2014, June 16, 2014, and February 25, 2015, as the “create dates,” meaning that those were
the dates where the images of child pornography appeared in the Little folder. He also
explained that the create dates would remain the same if moved from one subfolder to
another, but would change if the image was copied into another location on the computer.
Howell explained that during the search of the Samsung laptop, the images were not
located in the Downloads folder, but in the Little subfolder, meaning that a user moved or
copied the images from Downloads to Little. Based on his observations of the files’
create dates, Howell testified that he believed the images were copied into the Little folder
on their respective create date, February 25, 2015.
another in terms of their content. Howell explained, however, that he could not tell when
certain files were opened or viewed on the computer and that he had no evidence to support
whether the files were ever opened. Howell also explained that he could not tell if any of
the images of child pornography were ever deleted but then recovered, because his
examination of the files did not include that analysis. He also stated that none of the files
contained what he considered to be a descriptive title, suggesting the contents of the
downloaded files to the receiver.
{¶12} At the close of the state’s case, Davis moved for a Crim.R. 29 acquittal, which
the trial court denied.
Davis testified on his own behalf. Davis stated that he received the images from a file
sent by another user through motherless.com. Davis testified that once he downloaded the
file and opened some of the files and saw the thumbnail images, he was shocked and
disgusted. Davis stated that after he unsuccessfully tried to delete the files, he moved
thеm into the “Little” folder. He testified that he never viewed, sent, or shared the images
after receiving them; however, on cross-examination, Davis admitted that after
downloading the entire file from motherless.com he knew that the images were child
pornography. Specifically, Davis admitted to creating the folder titled “Little” and when
asked by the prosecutor what was inside of that subfolder, Davis responded, “child
pornography.” He also admitted that he had images on his computer that, after
downloading them, he knew contained child pornography. Finally, he agreed that all of
the images inside of the “Little” folder were child pornography. On redirect examination,
Davis explained that he placed the images in the Little folder so that he knew not to open
them again and that he had not viewed the images since placing them inside the Little
folder. At the close of its case, Davis renewed his Crim.R. 29 motion for acquittal, which
the court denied.
Bench Trial for Count 31: Possessing Criminal Tools
criminal tools in violation of R.C. 2923.24(A) with a forfeiture specification, which
concerned Davis’s аlleged use of the Samsung laptop computer, Gateway laptop computer,
Sandisk Cruzer, Samsung cell phone, and Playstation 4 to download, view, or receive child
pornography. The state presented only one witness, recalling Detective Howell to testify.
Howell testified that he found pictures of nude children on the Gateway laptop and
pornographic video featuring children on the Sandisk Cruzer. He also stated that the cell
phone was attached to the Gateway laptop via the computer’s USB port.
trial court partially granted Davis’s motion, dismissing the Playstation 4 and cell phone
from the count and forfeiture specification.
{¶16} Davis presented no evidence on his behalf in relation to Count 31 and
renewed his motion for a Crim.R. 29 acquittal, which was denied.
{¶17} The jury found Davis not guilty of Counts 1-3 and 13, pandering sexually
oriented matter involving a minor, in violation of R.C. 2907.322(A)(1) and Counts 14-18
and 24, illegal use of a minor in nudity oriented material or performance, in violation of
R.C. 2907.323(A)(1). The jury found Davis guilty of Counts 25-30, pandering sexually
oriented matter involving a minor, in violation of R.C. 2907.322(A)(5).
laptop, and Sandisk Cruzer and ordered the forfeiture of those items.
{¶19} At sentencing, the trial court determined that Davis was a Tier II sex offender,
requiring him to register as a sex offender for 25 years. The trial court sentenced Davis to
two years of community control under the supervision of the Adult Probation Department’s
Sex Offender Unit. In addition, the trial court imposed an indefinite period of home
detention with GPS monitoring that could potentially last the entire two-year term of
community control and rеstricted Davis’s computer access to devices that contained
court-monitored software.
A. Sufficiency of the Evidence
{¶20} In his first assignment of error, Davis argues that his convictions were not
supported by sufficient evidence because they were based on inferences, and there was no
evidence that he knew that the electronic files contained child pornography.
{¶21} A sufficiency challenge essentially argues that the evidence presented was
inadequate to support the jury verdict as a matter of law. State v. Thompkins, 78 Ohio
St.3d 380, 386, 678 N.E.2d 541 (1997). “The relevant question is 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.” State v.
Getsy, 84 Ohio St.3d 180, 193, 702 N.E.2d 866 (1998), quoting Jackson v. Virginia, 443
U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). “[A] conviction based on legally
insufficient evidence constitutes a denial of due process.” Thompkins at 386, citing Tibbs
v. Florida, 457 U.S. 31, 102 S.Ct. 2211, 72 L.Ed. 652 (1982). When reviewing a
sufficiency-of-the-evidence claim, we review the evidence in a light most favorable to the
prosecution. State v. Hill, 75 Ohio St.3d 195, 205, 661 N.E.2d 1068 (1996).
Pandering Sexually Oriented Matter Involving a Minor
involving a minor, in violation of R.C. 2907.322(A)(5), which states 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, masturbation, or bestiality[.]”
{¶23} Davis argues that the state offered no evidence establishing that he shared the
images of child pornography or that he ever opened the images and that the testimony
offered by the state was based on inferences. He also argues that the state failed to
sufficiently establish that he knew what the images contained when he received them from
motherless.com.
{¶24} Proof of guilt may be made by circumstantial evidence, which “requires the
drawing of inferences that are reasonably permitted by the evidence[,]” but nevertheless
“carries the same weight as direct evidence.” State v. Cassano, 8th Dist. Cuyahoga No.
97228, 2012-Ohio-4047, ¶ 13, citing State v. Treesh, 90 Ohio St.3d 460, 739 N.E.2d 749
(2001).
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.”
{¶26} At trial, the state presented testimony from Investigator Frattare, Detective
Crano, and Detective Howell. All three officers testified that they located child
pornography on laptops and a Sandisk Cruzer found in the residence. The investigators
testified that the images on the Samsung laptop and Sandisk Cruzer containing child
pornography were grouped together in a single subfolder titled “Little.” During the
witnesses’ testimony, the state prеsented a handful of exhibits, including photographs of
Davis’s residence, the electronic devices that contained child pornography, and digital
images of the child pornography found on the Samsung laptop. The state also played the
investigators’ interview of Davis, during which Davis admitted that the electronic devices
seized from the residence were his and to knowing that there was child pornography saved
on his Samsung laptop inside of the “Little” folder.
statements during his interview with investigators was sufficient to establish thаt he
knowingly received, possessed, and/or controlled images of child pornography as required
for a conviction under R.C. 2907.322(A)(5). See State v. Duhamel, 8th Dist. Cuyahoga
No. 102346, 2015-Ohio-3145, ¶ 38 (finding the defendant knowingly possessed child
pornography because he “transferred the files to external hard drives and saved them in
separate folders that he categorized and named according to the type of files contained” and
“confessed to police * * * that he possessed illegal files”). Davis even admitted in his
own testimony that he knew that the files contаined child pornography.
{¶28} Further, contrary to Davis’s argument, the statute does not require the state to
present direct evidence establishing if or when Davis shared or opened the images.
{¶29} Davis also challenges the sufficiency of evidence supporting his conviction of
possessing criminal tools, in violation of R.C. 2923.24(A), which states, “No person shall
possess or have under the person’s control any substance, device, instrument, or article,
with purpose to use it criminally.” That conviction specifically concerned Davis’s use of
the Samsung laptop, Gateway laptop, and Sandisk Cruzer thumb drive to download,
receive, and view child pornography. Davis argues that there was no evidence to show
that he used his laptops and Sandisk Cruzer “with purpose to use it criminally.”
{¶30} At trial, the state’s witnesses testified that they found child pornography on
Davis’s Samsung laptop computer and presented exhibits of the images as well as the
investigators’ interview with Davis, where he admits to downloading and saving the images
onto his computer even after realizing they contained child pornography. Further, at the
later trial date specifically related to Count 31, the state presented Detective Howell who
testified that investigators found pictures of nude children on Davis’s Gateway laptop
computer and pornographic videos featuring children on his Sandisk Cruzer. The
statements made by Davis in his interview with investigators establish that he kept images
on his laptops and Sandisk Cruzer even though he knew that they contained child
pornography, which is illegal to possess or control. Viewing that evidence in a light most
favorable to the proseсution, we cannot say that the evidence was insufficient to support
Davis’s conviction for possessing criminal tools in violation of R.C. 2923.24(A).
{¶31} Accordingly, we overrule Davis’s first assignment of error.
{¶32} In his second assignment of error, Davis argues that his convictions were
against the manifest weight of the evidence.
{¶33} Unlike sufficiency of the evidence, a challenge to the manifest weight of the
evidence attacks the credibility of the evidence presented. Thompkins, 78 Ohio St.3d at
387, 678 N.E.2d 541. Because it is a broader review, a reviewing court may determine
that a judgment of a trial court is sustained by sufficient evidence, but nevertheless
conclude that the judgment is against the weight of the evidence. Id., citing State v.
Robinson, 162 Ohio St. 486, 124 N.E.2d 148 (1955).
{¶34} When reviewing a manifest-weight challenge, an appellate court sits as the
“thirteenth juror” and requires us to “review the entire record, weigh all of the evidence and
all of the reasonable inferences, consider the credibility of the witnesses, and determine
whether, in resolving conflicts in evidence, the factfinder clearly lost its way and created
such a manifest miscarriage of justice that the conviction must be reversed[.]” Thompkins
at 387, citing State v. Martin, 20 Ohio App.3d 172, 485 N.E.2d 717 (1st Dist.1983). We
are required to give “due deference” to the factfinder’s conclusions because “the demeanor
of witnesses, the manner of their responses, and many other factors observable by [the
factfinder] * * * simply are not available to an appellate court on review.” State v. Miller,
8th Dist. Cuyahoga No. 100461, 2014-Ohio-3907, ¶ 58, citing Thompkins; State v. Bailey,
8th Dist. Cuyahoga No. 97754, 2012-Ohio-3955, ¶ 11, quoting State v. Bierbaum, 3d Dist.
Seneca No. 13-88-18, 1990 Ohio App. LEXIS 1204 (Mar. 4, 1990). “Further, * * * [we]
must keep in mind that questions of weight and credibility are primarily for the trier of fact
to determine.” State v. Irby, 7th Dist. Mahoning No. 03 MA 54, 2004-Ohio-5929, ¶ 39,
citing State v. DeHass, 10 Ohio St.2d 230, 227 N.E.2d 212 (1967). Accordingly,
reversing a previous conviction and ordering a new trial under a
manifest-weight-of-the-evidence claim should be saved for the “exceptional case in which
the evidence weighs heavily against the conviction.” State v. Bridges, 8th Dist. Cuyahoga
No. 100805, 2014-Ohio-4570, ¶ 67, citing Thompkins.
But, “when considering a manifest weight challenge, the trier of fact is in the best position
to take into account inconsistencies, along with the witnesses’ manner, demeanor, gestures,
and voice inflections, in determining whether the proffered testimony is credible.” State
v. McNamara, 8th Dist. Cuyahoga No. 104168, 2016-Ohio-8050, ¶ 36, citing State v. Kurtz,
8th Dist. Cuyahoga No. 99103, 2013-Ohio-2999. “Therefore, we afford great deference
to the factfinder’s determination of witness credibility.” Id.
{¶37} In this case, the jury, which was free to believe all, part, or none of any
witness’s testimony, believed the officers, who testified that they found child pornography
on Davis’s laptops and Sandisk Cruzer. The jury could also have believed Davis’s
testimony, during which he admitted to knowing that the folders on his laptop and Sandisk
Cruzer сontained child pornography, and still found him guilty. In his brief, Davis argues
that he accidentally downloaded, but never saw the images of child pornography. But
during his interview with investigators, Davis stated that he viewed some of the images and
knew that there was child pornography on his electronic devices. Further, during his
testimony, he admitted that he did not delete the images from his computer even after
realizing that they contained child pornography.
{¶38} In light of that evidence, as well as the evidence previously discussed, we
cannot conclude that this is the exceptional case where the jury lost its way. Davis’s
cоnvictions for pandering sexually oriented matter involving a minor and possessing
criminal tools are not against the manifest weight of the evidence. Therefore, his second
assignment of error is overruled.
C. Allied Offenses Determination
{¶39} In his final assignment of error, Davis argues that the trial court failed to
properly determine whether the offenses of which he was convicted were allied. The state
argues that because Davis was not sentenced to any terms of incarceration, the court was
not required to make that determination.
{¶40} R.C. 2941.25(A) states that “[w]here the same conduct by [a] defendant can
be construed to constitute two or morе allied offenses of similar import, the indictment or
information may contain counts for all such offenses, but the defendant may be convicted
of only one.” Courts must consider three questions when determining if offenses are
allied and of similar import under R.C. 2941.25(A): “(1) Were the offenses dissimilar in
import or significance? (2) Were the offenses committed separately? or (3) Were the
offenses committed with separate animus or motivation?” State v. Locke, 8th Dist.
Cuyahoga No. 102371, 2015-Ohio-3349, ¶ 18, citing State v. Ruff, 143 Ohio St.3d 114,
2015-Ohio-995, 34 N.E.3d 892. “If a court can answer in the affirmative to any of the
questions, then sеparate convictions are permitted.” Id., citing Ruff.
{¶41} “An accused’s failure to raise the issue of allied offenses of similar import in
the trial court forfeits all but plain error[.]” State v. Williams, 148 Ohio St.3d 403,
2016-Ohio-7658, 71 N.E.3d 234, ¶ 25, citing State v. Rogers, 143 Ohio St.3d 385,
2015-Ohio-2459, 38 N.E.3d 860. “[I]f a defendant fails to raise the issue at the trial court
level, the burden is solely on that defendant, not on the state or the trial court, to
‘demonstrate a reasonable probability that the convictions are for allied offenses of similar
import committed with the same conduct and without a separate animus.’” Locke аt ¶ 20,
citing Rogers. If the defendant does not satisfy that burden, then a trial court’s failure to
inquire into whether the convictions were for allied offenses of similar import does not rise
to the level of plain error. Id.
{¶42} Here, neither Davis nor the state raised the issue of allied offenses of similar
import before the trial court. Davis cannot show that the omitted inquiry rises to the level
of plain error because “each child pornography file or image that is downloaded is a new
and distinct crime.” Locke at ¶ 28, citing State v. Mannarino, 8th Dist. Cuyahoga No.
98727, 2013-Ohio-1795. “[M]ultiple convictions are allоwed for each individual image
because a separate animus exists every time a separate image or file is downloaded and
saved.” State v. Hendricks, 8th Dist. Cuyahoga No. 92213, 2009-Ohio-5556, ¶ 35.
Therefore, Davis’s six convictions for pandering sexually oriented material involving a
minor are not allied offenses of similar import. Accordingly, we overrule Davis’s third
assignment of error.
{¶43} Judgment affirmed.
It is ordered that appellee recover from appellant the costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the common
pleas court to carry this judgment into execution. The defendant’s conviction having
been affirmed, any bail pending appeal is terminated. Case remanded to the trial court for
execution of sentence.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the
Rules of Appellate Procedure.
MARY J. BOYLE, PRESIDING JUDGE
SEAN C. GALLAGHER, J., and
LARRY A. JONES, SR., J., CONCUR