STATE OF OHIO v. BENJAMIN KLAFCZYNSKI
C.A. No. 18CA0084-M
IN THE COURT OF APPEALS NINTH JUDICIAL DISTRICT
June 8, 2020
2020-Ohio-3221
TEODOSIO, Presiding Judge.
APPEAL FROM JUDGMENT ENTERED IN THE COURT OF COMMON PLEAS COUNTY OF MEDINA, OHIO CASE No. 17CR0268
Dated: June 8, 2020
TEODOSIO, Presiding Judge.
{1} Appellant, Benjamin Klafczynski, appeals from his conviction for tampering with evidence in the Medina County Court of Common Pleas. This Court affirms.
I.
{2} Mr. Klafczynski was a teacher and golf coach at Wadsworth High School (“the school“). A female student of the school (“L.S.“) began babysitting Mr. Klafczynski‘s son, so the two exchanged phone numbers and purportedly became friends on the Snapchat app. L.S.’ boyfriend (“J.T.“) was on the school‘s golf team. According to L.S., Mr. Klafczynski would occasionally comment on how nice she looked or how nice her breasts or dress looked. During one particular golf match, Mr. Klafczynski accompanied L.S. to the clubhouse bar to get some water for the team, and he allegedly said to her, “If I would have known this was our first date, I would have dressed nicer.” According to L.S., Mr. Klafczynski would hug her frequently, “maybe five times a week.” She claimed that, while students were playing Mario Kart in class one day,
{3} Once the school and police were made aware of the allegations, they launched an investigation. When Mr. Klafczynski‘s phone was searched pursuant to a warrant, no illicit photos, contact information for L.S., or Snapchat app were found on his phone. Police did, however, discover Snapchat logs on the phone. When the school‘s principal searched Mr. Klafczynski‘s desk, he found a Post-it note allegedly written in Mr. Klafczynski‘s handwriting, stuck to the bottom of a box of Mr. Klafczynski‘s business cards, that listed, numerically: (1) Coming over?; (2) Snapchat; delete; last pics / “good” message; (3) Moving forward.
{4} Mr. Klafczynski was charged with tampering with evidence, sexual imposition, and illegal use of a minor in nudity-oriented material or performance. After a jury trial, he was found guilty of tampering with evidence, but not guilty of the remaining two charges. The trial court sentenced him to five years of community control.
{5} Mr. Klafczynski now appeals from his conviction and raises five assignments of error for this Court‘s review. We have reorganized his assignments of error to facilitate our review.
II.
ASSIGNMENT OF ERROR FOUR
THE JURY‘S FINDING OF GUILT AND THE ACCEPTANCE OF THE FINDING OF GUILT IS AGAINST THE MANIFEST WEIGHT AND SUFFICIENCY OF THE EVIDENCE.
{7} “A challenge to the sufficiency of the evidence concerns the State‘s burden of production, while a challenge to the manifest weight of the evidence concerns the State‘s burden of persuasion.” In re R.H., 9th Dist. Summit No. 28319, 2017-Ohio-7852, ¶ 25, citing State v. Thompkins, 78 Ohio St.3d 380, 390 (1997) (Cook, J., concurring). Although sufficiency and manifest weight are two separate, legally distinct arguments and should be argued separately, Mr. Klafczynski has chosen to argue them together in his brief, and we will therefore address them together. See, e.g., State v. Gilbert, 9th Dist. Lorain No. 17CA011209, 2018-Ohio-1883, ¶ 5; State v. Dean, 9th Dist. Lorain No. 18CA011290, 2019-Ohio-1391, ¶ 5.
{8} Whether a conviction is supported by sufficient evidence is a question of law, which this Court reviews de novo. Thompkins at 386. “‘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., quoting State v. Jenks, 61 Ohio St.3d 259 (1991), paragraph two of the syllabus. However, “we do not resolve evidentiary conflicts or assess the credibility of witnesses, because these functions belong to the trier of fact.” State v. Hall, 9th Dist. Summit No. 27827, 2017-Ohio-73, ¶ 10.
{9} When reviewing a manifest weight challenge,
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.
{10} Mr. Klafczynski was convicted of tampering with evidence under
{11}
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. When knowledge of the existence of a particular fact is an element of an offense, such knowledge is established if a person subjectively believes that there is a high probability of its existence and fails to make inquiry or acts with a conscious purpose to avoid learning the fact.
“A person acts purposely when it is the person‘s specific intention to cause a certain result, or, when the gist of the offense is a prohibition against conduct of a certain nature, regardless of what the offender intends to accomplish thereby, it is the offender‘s specific intention to engage in conduct of that nature.”
{12} Mr. Klafczynski argues that the State failed to demonstrate that any information was tampered with or deleted from his cell phone. He also argues that the Snapchat app was not on his phone when it was searched and no evidence was presented as to when the Snapchat app was deleted from his phone.
{13} L.S. testified as to how the Snapchat app works or operates. Although Mr. Klafczynski contends in another assignment of error that L.S. should not have been permitted to testify as to how Snapchat works, the Supreme Court of Ohio has emphasized that “the interest in the administration of justice dictates that the appellate court review the issue of sufficiency in consideration of all evidence presented by the State in its case in chief, whether such evidence was properly admitted or not.” State v. Dixon, 9th Dist. Medina Nos. 11CA0065-M and 11CA0087-M, 2012-Ohio-4428, ¶ 18, citing State v. Brewer, 121 Ohio St.3d 202, 2009-Ohio-593, ¶ 19.
{14} At trial, L.S. testified about Snapchat as follows: “So how it works is you take a picture, and it‘s supposed to disappear within a few seconds and you can‘t see it again. Same with messages, unless you hold it down to save it.” She testified that pictures and messages are saved “[i]f you take a screenshot on your phone.” L.S. elaborated further that “[w]hen you take a screenshot on Snapchat, it sends, like, a notification to your phone saying that that person had screenshotted your picture or message or anything like that.” L.S. testified that she had sent pictures of herself to Mr. Klafczynski through Snapchat, including a picture of her in her bra and
{15} Many screenshots of Mr. Klafczynski‘s Snapchat conversations with L.S., taken from L.S.’ phone, were entered into evidence at trial. The conversations are somewhat incomplete, and L.S. testified that she did not save some of her messages to Mr. Klafczynski in time, before Snapchat automatically deleted them. Some of Mr. Klafczynski‘s messages appear to discuss the importance of deleting information from their phones, including: “It would be awful if someone had are (sic) phones“; “Deleting this lol“; “Btw those messages won‘t delete permanently“; “I deleted the convo but when I search your name it comes back“; and “If I delete you then they don‘t show for now[.]” At one point, Mr. Klafczynski says, “No pics though,” which L.S. testified was in regard to their Snapchat pictures being saved on his phone but not saved in the Snapchat app. Mr. Klafczynski also makes several comments seemingly instructing L.S. on how to delete things off of her own phone, including: “It (sic) saying if u tap the message it saves. The red and blue lines have to be thin not thick for them to delete“; “Try holding them down“; “Are they gone for you if u search me under messages?“; “Are they deleted?“; and “Ok I‘ll figure it out. I‘ll show ya tomorrow and I (sic) help lol[.]” L.S. testified that these particular comments were in reference to Mr. Klafczynski taking her phone and deleting anything she had saved on it. She testified that Mr. Klafczynski, as her teacher, could take her phone at any point, and that he, in fact, did take her phone to try to delete “stuff.”
{16} On December 5, 2016, around noon, J.T. surreptitiously recorded on his own phone his conversation with Mr. Klafczynski about what happened between L.S. the teacher, and his three videos were introduced into evidence. J.T. tells Mr. Klafczynski that L.S. admitted “it” to
{17} A female friend of L.S.’ recorded a separate video of a phone call between Mr. Klafczynski and L.S. on December 5, 2016, which was also entered into evidence. In that phone call, while on speakerphone, Mr. Klafczynski tells L.S. he wanted to “make sure that the conversation was deleted.” He also says, “I deleted my Snapchat, so I told [J.T.] I didn‘t have that, just so you know.”
{18} Officer Joshua Cooper of the Wadsworth Police Department, who specializes in digital forensics, testified at trial as to his extensive training and certifications. He testified that he used two separate Cellebrite programs while completing both logical and file system extractions of data from Mr. Klafczynski‘s cell phone. According to Officer Cooper, the Snapchat app was not installed on Mr. Klafczynski‘s phone when he searched it, but he found an email regarding a password change for Snapchat. He also found fifteen entries or logs in the phone‘s database when he searched for “Snapchat,” which he testified meant Snapchat had been used on the phone. Officer Cooper did not discover any photos on the phone of Mr. Klafczynski shirtless, nor did he find any photos of L.S. either nude or in her bra and panties. He did, however, find picture files in the JPEG format which contained zero kilobytes of data. He testified that this indicated there had been pictures there which were no longer there. According to Officer Cooper, the last entry or log for Snapchat in Mr. Klafczynski‘s phone occurred on December 4, 2016, at 7:29 P.M. He testified that that was the last time the phone‘s data was being used for the Snapchat app.
{20} Based on our review of the record, and in viewing the evidence in a light most favorable to the prosecution, we determine that the State presented sufficient evidence, if believed, that Mr. Klafczynski committed the offense of tampering with evidence. L.S. testified that she sent illicit photos to Mr. Klafczynski through Snapchat, which were saved by Mr. Klafczynski. The State presented evidence of communications between Mr. Klafczynski and L.S. regarding Mr. Klafczynski deleting Snapchat and other data from his phone. Mr. Klafczynski admits being appreciative when J.T. talks to him first about the situation because he “like[s] [his] job.” Although neither Snapchat nor any illicit photos of L.S. remained on his phone when it was searched by police, evidence was presented that Snapchat had, in fact, been used on Mr. Klafczynski‘s phone up until the night of December 4, 2016. He was placed on paid administrative leave on the following day. A Post-it note found in Mr. Klafczynski‘s desk included apparent reminders
{21} Thus, the evidence presented at trial, if believed, demonstrated that Mr. Klafczynski, knowing that an official proceeding or investigation was about to be or was likely to be instituted, deleted data from his phone to purposefully impair its value or availability as evidence in such proceeding or investigation. This Court therefore concludes that a rational trier of fact could have reasonably determined all of the elements of tampering with evidence were proven beyond a reasonable doubt. See Jenks at paragraph two of the syllabus.
{22} Regarding his challenge to the manifest weight of the evidence, Mr. Klafczynski argues that the evidence presented at trial demonstrated that the Snapchat app itself automatically deletes images and messages; thus, he could not have deleted such data himself. He appears to concede, however, that this automatic deletion by the app occurs “unless the user saved it.” He also offers no explanation for how this argument extends to the deletion of the Snapchat app itself.
{23} L.S. did testify that Snapchat pictures and messages disappear from the app within seconds once sent and cannot be retrieved again. But, she also testified that users may choose to screenshot or save pictures and messages, and the app thereafter sends a notification to the sender that the picture or message was saved. She further testified that she did, in fact, receive Snapchat notifications that Mr. Klafczynski had saved some of her pictures. The evidence also showed that Mr. Klafczynski made many comments to L.S. regarding deleting Snapchat from his phone and deleting data from both of their phones. L.S. testified that Mr. Klafczynski, in fact, took her phone
{24} In reviewing the entire record, weighing the evidence and all reasonable inferences, and considering the credibility of witnesses, we cannot say that the trier of fact clearly lost its way and created such a manifest miscarriage of justice that Mr. Klafczynski‘s conviction must be reversed. See Otten, 33 Ohio App.3d at 340. Mr. Klafczynski has also not shown how this is an exceptional case in which the evidence weighs heavily against the conviction. See Thompkins, 78 Ohio St.3d at 387.
{25} Overall, we cannot say that Mr. Klafczynski‘s conviction was based on insufficient evidence or was against the manifest weight of the evidence. Mr. Klafczynski‘s fourth assignment of error is therefore overruled.
ASSIGNMENT OF ERROR ONE
THE TRIAL COURT VIOLATED MR. KLAFCZYNSKI‘S CONSTITUTIONAL RIGHTS WHEN IT DENIED MR. KLAFCZYNSKI‘S MOTION TO EXAMINE EXCULPATORY EVIDENCE.
{26} In his first assignment of error, Mr. Klafczynski argues that the trial court erred in denying his request for an independent examination of L.S.’ cell phone. We disagree.
{27} “A trial court‘s resolution of discovery issues in criminal matters is reviewed for an abuse of discretion.” State v. Sadeghi, 9th Dist. Wayne No. 14AP0051, 2016-Ohio-744, ¶ 14. “The term ‘abuse of discretion’ connotes more than an error of law or judgment; it implies that the court‘s attitude is unreasonable, arbitrary or unconscionable.” Blakemore v. Blakemore, 5 Ohio St.3d 217, 219 (1983). When applying an abuse of discretion standard, a reviewing court is precluded from simply substituting its own judgment for that of the trial court. Pons v. Ohio State Med. Bd., 66 Ohio St.3d 619, 621 (1993).
{29} Mr. Klafczynski filed a pretrial motion for an independent forensic examination of both his phone and L.S.’ phone, and the trial court held a hearing on the matter. Although the trial court ultimately permitted an independent forensic examination of Mr. Klafczynski‘s own phone, it denied his motion to the extent that he sought to have L.S. turn over her phone for his examination.
{30} Mr. Klafczynski argues that L.S.’ phone contained material and exculpatory evidence, e.g., “communications” and nude pictures that may or may not be there. Interestingly enough, he also claims that he should have been permitted to examine the phone “to determine if the phone contained any exculpatory information.” (Emphasis added.). “[A] defendant cannot establish a due process violation by speculating about the existence, content, and disposition of evidence.” Jalowiec at ¶ 49.
{32} Mr. Klafczynski was convicted of tampering with evidence based on allegations that he deleted evidence off of his own phone. It follows that any potential evidence recovered from L.S.’ phone would neither exculpate Mr. Klafczynski from the crime of tampering with evidence on his own phone nor establish a reasonable probability that a different result would have occurred at trial. The results of any examination of L.S.’ phone would not be favorable to Mr. Klafczynski. If illicit communications and pictures were found on L.S.’ phone, such a discovery would, perhaps, provide even more evidence of Mr. Klafczynski‘s guilt. If her phone was instead devoid of any such communications and photos, the absence of such evidence would still bear no effect on whether Mr. Klafczynski tampered with evidence on his own phone.
{33} Because Mr. Klafczynski has not demonstrated how this speculative evidence would be favorable or material and has not shown a reasonable probability that the outcome would have been different if the evidence had been provided, we cannot say that the trial court erred or abused its discretion in denying his motion to examine L.S.’ phone for exculpatory evidence. See Whalen at ¶ 8.
{34} Mr. Klafczynski‘s first assignment of error is overruled.
ASSIGNMENT OF ERROR TWO
THE TRIAL COURT ABUSED ITS DISCRETION BY ALLOWING TESTIMONY REGARDING SNAPCHAT FROM A WITNESS WHEN THERE
WAS A LACK OF FOUNDATION AND LACK OF QUALIFICATION OF THE TESTIFYING WITNESS.
{35} In his second assignment of error, Mr. Klafczynski argues that the trial court erred in permitting L.S. to testify about “the procedures and uses of Snapchat[,]” as her testimony was “beyond the knowledge or experience possessed by lay persons or dispels a misconception common among lay persons.” We disagree.
{36} The trial court has broad discretion in the admission and exclusion of evidence, including the determination as to whether an individual is an expert, and this Court will not disturb evidentiary rulings absent an abuse of that discretion. State v. Hickman, 9th Dist. Summit No. 20883, 2002-Ohio-3406, ¶ 11. “The term ‘abuse of discretion’ connotes more than an error of law or judgment; it implies that the court‘s attitude is unreasonable, arbitrary or unconscionable.” Blakemore v. Blakemore, 5 Ohio St.3d 217, 219 (1983). When applying an abuse of discretion standard, a reviewing court is precluded from simply substituting its own judgment for that of the trial court. Pons v. Ohio State Med. Bd., 66 Ohio St.3d 619, 621 (1993).
{37} A witness may testify as an expert if: (1) her testimony “either relates to matters beyond the knowledge or experience possessed by lay persons or dispels a misconception common among lay persons;” (2) she “is qualified as an expert by specialized knowledge, skill, experience, training, or education regarding the subject matter of the testimony;” and (3) her testimony “is based on reliable scientific, technical, or other specialized information.”
{38} Mr. Klafczynski argues that the trial court permitted L.S. to present improper expert testimony as to the “procedures and uses of Snapchat[,]” which was “beyond the knowledge or experience possessed by lay persons or dispel[led] a misconception common among lay persons.” He challenges her testimony that: Snapchat deletes pictures automatically after a few seconds; users can screenshot or save images; Snapchat notifies the sender when the receiver has saved the
{39} Mr. Klafczynski cites to no authority requiring expert testimony to establish or explain the basic functioning of the Snapchat app. See
{40} Mr. Klafczynski‘s second assignment of error is overruled.
ASSIGNMENT OF ERROR THREE
MR. KLAFCZYNSKI‘S CONSTITUTIONAL RIGHTS WERE VIOLATED WHEN THE TRIAL COURT IMPROPERLY RULED AND INSTRUCTED THE JURY PURSUANT TO R.C. 3319.31 AND R.C. 3319.311.
{41} In his third assignment of error, Mr. Klafczynski argues that the trial court erred by instructing the jury pursuant to
{42} “[A] trial court must fully and completely give the jury all instructions which are relevant and necessary for the jury to weigh the evidence and discharge its duty as the fact finder.”
{43} The State was burdened with proving that Mr. Klafczynski tampered with evidence at a time when he knew an “official proceeding or investigation” was in progress or was about to be, or was likely to be, instituted. See
{44} At trial, Principal Moore testified that a lengthy process is involved in order for a teacher to be fired, which involves an investigation and a disciplinary hearing. He testified that inappropriate contact or communications between a teacher and a student is enough to warrant
{45} The prosecutor requested additional jury instructions on
{46} While arguing at sidebar against the admission of any testimony regarding any investigation and proceedings by the principal or superintendent, Mr. Klafczynski‘s counsel admitted, “We assumed [the official proceeding] was criminal. That‘s typically what the [tampering with evidence] statute * * * deal[s] with * * * .” The prosecutor explained to the court, “There‘s going to be an investigation by the police, investigation by the school, and then potentially by the State Board of Education.” Relying specifically on the Supreme Court of Ohio‘s decision in E. Canton Edn. Assn. v. McIntosh, 85 Ohio St.3d 465 (1999), Mr. Klafczynski objected to the additional, requested instructions and argued that an “official proceeding” for purposes of tampering with evidence does not apply to school principals or superintendents because neither one is a “public official” and neither one can “swear people in under oath” or “investigate anything.” In McIntosh, the Supreme Court of Ohio noted that it had previously held that a public school superintendent is a public official, but had not yet considered the issue of whether a public high school principal is a public official for purposes of defamation law. Id. at 474, citing Scott v. The News-Herald, 25 Ohio St.3d 243 (1986), paragraph two of the syllabus. The high court discussed how courts in other jurisdictions are divided as to whether public school principals should be accorded “public official” status, but ultimately held that a public school principal is not a public official for purposes of defamation law. Id.
{47} While Mr. Klafczynski challenged the school‘s investigation and impending proceedings regarding his teaching license, he never challenged the police department‘s criminal investigation as not satisfying the “official proceeding or investigation” element for tampering with evidence. Principal Moore testified that both the school and the police began investigations
{48} Accordingly, we cannot say that the trial court committed reversible error by instructing the jury as to
{49} Mr. Klafczynski‘s third assignment of error is overruled.
ASSIGNMENT OF ERROR FIVE
MR. KLAFCZYNSKI WAS DENIED HIS RIGHT TO DUE PROCESS AND OF EFFECTIVE ASSISTANCE OF COUNSEL AS GUARANTEED BY THE SIXTH AND FOURTEENTH AMENDMENTS OF THE UNITED STATES CONSTITUTION AND ARTICLE I, SECTIONS 10 AND 16 OF THE OHIO CONSTITUTION.
{50} In his fifth assignment of error, Mr. Klafczynski argues that his trial counsel was ineffective for failing to object to the admission of exhibits of communications between himself and L.S. We disagree.
{51} “The Sixth Amendment guarantees a criminal defendant the right to the effective assistance of counsel.” State v. Liu, 9th Dist. Summit No. 24112, 2008-Ohio-6793, ¶ 22. “[I]n Ohio, a properly licensed attorney is presumed competent.” State v. Gondor, 112 Ohio St.3d 377, 2006-Ohio-6679, ¶ 62. “There are countless ways to provide effective assistance in any given case. Even the best criminal defense attorneys would not defend a particular client in the same way.” Strickland v. Washington, 466 U.S. 668, 689 (1984). Moreover, even debatable trial tactics will not constitute ineffective assistance of counsel. State v. Clayton, 62 Ohio St.2d 45, 49 (1980). To prove ineffective assistance of counsel, one must establish that: (1) his counsel‘s performance was deficient, and (2) the deficient performance prejudiced the defense. Strickland at 687.
{52} Mr. Klafczynski argues that the pictures of Snapchat conversations between himself and L.S. were “the most damaging evidence against [him,]” but were random, incomplete, and prejudicial, as some individual messages were missing. He argues that presenting such incomplete conversations to the jury allowed jurors to infer too much, and his trial counsel should have therefore objected.
{53} As a matter of law, the failure to object at trial may be justified as a trial tactic and thus does not sustain a claim of ineffective assistance of counsel. State v. Miller, 9th Dist. Summit No. 23240, 2007-Ohio-370, ¶ 10, citing State v. Gumm, 73 Ohio St.3d 413, 428 (1995). “Strategic trial decisions are left to the deference of trial counsel and are not to be second-guessed by appellate courts.” Id., citing State v. Carter, 72 Ohio St.3d 545, 558 (1995).
{54} Here, the pictures were not completely devoid of any and all messages from L.S. Some of her messages to Mr. Klafczynski were included, but she explained on the witness stand that others were missing because she had not saved them in time before Snapchat automatically deleted them. Moreover, Mr. Klafczynski has not explained how any of the missing messages actually resulted in prejudice that deprived him of a fair trial. Even assuming arguendo that counsel should have objected to these exhibits, we would nonetheless conclude that the failure to do so did not affect the outcome of the trial in light of the overwhelming evidence presented
{55} Mr. Klafczynski‘s fifth assignment of error is overruled.
III.
{56} Mr. Klafczynski‘s assignments of error are all overruled. The judgment of the Medina 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 Medina, 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.
THOMAS A. TEODOSIO
FOR THE COURT
CALLAHAN, J. CONCURS.
CARR, J. CONCURRING IN JUDGMENT ONLY.
{57} Although I agree with the majority‘s resolution of the first, second, fourth, and fifth assignments of error, I would resolve the third assignment of error solely on the basis of harmless error.
APPEARANCES:
KRISTOPHER IMMEL, Attorney at Law, for Appellant.
S. FORREST THOMPSON, Prosecuting Attorney, and VINCENT V. VIGLUICCI, Assistant Prosecuting Attorney, for Appellee.