State v. KraftState v. Kraft
CUNNINGHAM, Judge.
{¶1} Defendant-appellant Paul Kraft appeals his convictions for rape and pandering sexually oriented material involving a minor. For the reasons that follow, we affirm the trial court’s judgment.
{¶2} On March 7, 2005, Special Agent Dan Devine of the United States Secret Service, working undercover as part of an electronic-crimes task force in Miami, Florida, logged onto Yahoo!’s now defunct user-generated “Preteen Baby & Toddler Sex” chatroom. While in the chatroom, Devine saw a public message from a person with the email address bigman042003 (“Bigman”) directing other parents to contact him if they “wish[ed] to cam-to-cam with me, my daughter and your kids * * *.” Bigman’s Yahoo! profile indicated that his real name was Paul and that he was a 30-year-old married male living in Cincinnati, Ohio. In the hobby section of the profile, he indicated that he was interested in “sex, sex, sex” and that he was “domina[nt]” and had “no limits,” and that he preferred women with no limits. Devine had learned in past investigations that the reference to “no limits” indicated that the person was willing to engage in sexual activities with children.
{¶3} Using the screen name lisa_n_miami (“Lisa”), Devine posed as a 30-year-old female with a ten-year-old daughter. Devine, as Lisa, responded to Bigman in a private message that started an on-line conversation about broadcasting sexual acts involving their children. Bigman, using the screenname Matercock, asked Lisa about her daughter’s age and what sexual acts the child performed. Bigman then said that his
{¶5} Bigman demanded that Lisa send him a live picture of her with her daughter. Instead, Lisa emailed him a picture of a fully clothed adult that had been altered by age-regression software to make it appear that the adult was her ten-year-old daughter. Lisa avoided sending Bigman a webcam image of herself with her daughter by claiming that she still could not see Bigman’s daughter clearly. Frustrated, Bigman then told Lisa that she was a “fake” and “full of shit,” and he ended the conversation.
{¶6} The next day Lisa received four off-line emails from Bigman informing her that he would be on-line “tomorrow,” and that “if I give you a [s]how or not depends on you and if you are willing to send me nude pics of [your daughter] and I [prefer] ones showing her being used.”
{¶7} Devine captured Lisa’s on-line conversation with Bigman as a real-time file. Also, during the conversation, he began the process of contacting Yahoo! and tracing the bigman042003 email address to an Internet Protocol (“IP”) address. Devine learned that the Internet provider for the account had assigned the IP address to Paul Kraft at 4954 Winneste, Cincinnati, Ohio 45232.
{¶68} After reviewing the relevant factors, we hold that the error in this case was harmless beyond a reasonable doubt. We are confident that the inadmissible statements did not contribute to the finding of guilt, where Griffiths had already testified that he had actually met the child victim.
{¶69} Accordingly, based upon the admissible evidence, we hold that the state presented sufficient evidence that the performer in State‘s Exhibits 5 and 6 was a real minor.
c. Counts 12, 13, and 14
{¶70} Counts 12, 13, and 14 corresponded to State‘s Exhibits 7, 8, and 9, respectively. For these exhibits, the state presented the deposition testimony of Commandant Pascal Gariban of the French Judicial Police Division‘s Child Protection Brigade. Gariban stated that, in 2000, he was involved in a child-pornography investigation based upon photographs that had been circulating in
{¶71} During the 2000 interview with Gariban, Dugue identified the child as J.S.D. and said that the photographs were taken at his home between 1974 and 1978. Gariban relayed Dugue‘s statements during his testimony, over defense counsel‘s objection. The trial court overruled the objections, and Kraft again challenges this ruling on appeal.
{¶72} We assume that the trial court erred in admitting Dugue‘s statements to Gariban, where Kraft did not have an opportunity to cross-examine Dugue.51 But we hold that the error was harmless beyond a reasonable doubt. We are confident that the inadmissible statements did not contribute to the finding of guilt, where Gariban testified that Dugue had been held criminally liable for raping the boy, and Gariban identified the images in State‘s Exhibits 7, 8, and 9 as identical to photographs that had been distributed in magazines in the late 1970s, prior to the development of virtual-imaging technology.52
{¶73} After reviewing the admissible evidence, we hold that the state presented sufficient evidence that the performer depicted in sexual activity in State‘s Exhibits 7, 8, and 9 was a real minor.
{¶74} Count 15 corresponded to two video files that were presented at trial on a CD-ROM labeled State‘s Exhibit 14. File 2005-016.00349 depicted the anal rape of a nude infant girl. During the two-minute-and-18-second clip, the girl began crying as a man inserted his erect penis into her anus. The labia area of the infant was visible to the viewer for part of the clip. The viewer could see the force applied to restrain the infant. The motions of the man and the infant were smooth and responsive, indicating that they were real. The state was unable to identify the adult or infant in this video.
{¶75} File 2005-016.00411 depicted the vaginal rape of a nude infant girl sleeping on the lap of a man sitting on a recliner chair in an infant‘s room. The man began by vigorously rubbing her clitoris, which was visible in the video. The infant began to wake up as the man inserted his erect penis into the infant‘s vagina. The infant‘s facial expression changed from peacefulness to great discomfort. The motions of the man and infant were smooth and responsive, indicating that they were real. The video clip lasted for one minute and three seconds. The state was unable to identify the adult or infant in this video.
{¶76} Despite the lack of direct evidence to establish the use of an actual minor in the performance, we hold that the record contains sufficient evidence from which the trier of fact could have concluded that the images depicted real minors. The trier of fact could have inferred that the images were real because of the quality of the life-like images that were seamlessly displayed in a video format, as opposed to a still-image format. Kraft‘s own expert admitted that the creation of a similar
{¶77} Also, the evidence indicated that Kraft had a habit of viewing live rapes of minors broadcast by a web camera. He required proof that the minor was real and present prior to going forward with an invitation. After viewing this evidence in the light most favorable to the state, we hold that the state proved that the images that supported count 15 depicted actual minors.
e. Count 16
{¶78} Count 16 coincided with State‘s Exhibit 11. Stephanie Gleason, a Special Agent with the Federal Bureau of Investigation assigned to the Seattle Division, testified that in 2000 she was involved in the investigation of James and Tracy Wright for the creation of child pornography. As a result of the investigation, the Wrights had been convicted and were serving prison terms.
{¶79} Gleason identified State‘s Exhibit 11 as one of the images recovered on the Wrights’ computer during the investigation. The image showed James Wright sodomizing his two-and-a-half-year-old son, whom we refer to as D.W. Gleason testified that she recognized D.W. on the image and that D.W. was, in fact, a child whom she had held on her lap.
{¶80} While testifying, Gleason was asked if she had questioned James Wright about the image. Over defense counsel‘s objection, she replied that she had questioned James and that he had told her that he was the adult in the image, that his son D.W. was the child in the image, and that his wife had taken the image.
{¶81} We assume that the trial court erred in admitting the hearsay statements of Wright, where Kraft did not have an opportunity to cross-examine Wright.53 But we hold that the error was harmless beyond a reasonable doubt. We are confident that the inadmissible statements did not contribute to the finding of guilt, where Gleason testified that she had met the minor depicted in the image.54
{¶82} Accordingly, based upon the admissible evidence, we hold that the state presented sufficient evidence that the image supporting count 16 depicted an actual minor.
f. Count 17
{¶83} Count 17 corresponded with State‘s Exhibit 12, a file containing an image titled “boyx06.jpg.” The image showed a man performing fellatio on a boy. For this count, the state presented the deposition testimony of Brooke Donahue, a Special Agent with the Federal Bureau of Investigation‘s Dallas, Texas, office. Donahue testified that he recognized the individuals in Exhibit 12 from his participation in a child-pornography investigation in 2004. As a result of the investigation, he had arrested Kevin Quinn, the man depicted in the image. Quinn was subsequently convicted for creating pornography involving a minor.
{¶84} Over Kraft‘s objection, Donahue testified about statements Quinn had made to him during the investigation. These statements included Quinn‘s admission that the other person in the image was his nephew, who was 10 or 11 years old at the
{¶85} We assume that the trial court erred in admitting Quinn‘s hearsay statements, where Kraft did not have the opportunity to cross-examine him.55 But we hold that the error was harmless beyond a reasonable doubt. We are confident that the inadmissible statements did not contribute to the finding of guilt, where Donahue testified from his own knowledge that Quinn was convicted of crimes requiring proof that the boy in the image was an actual minor.56
{¶86} After reviewing the admissible evidence, we hold that the state presented sufficient evidence that the person in the image was an actual minor.
2. Knowledge of Character of the Material
{¶87} To establish a violation of the statute, the state was also required to prove that Kraft knew the character of the material: that it involved a real minor engaging or participating in sexual activity. The state does not need to show that the defendant had precise knowledge of the contents of the material.57 “A person has knowledge of circumstances when he is aware that such circumstances probably exist.”58 The state may rely solely on circumstantial evidence in proving that the defendant had knowledge of the character of the material.59
{¶88} Any circumstantial evidence that would support a finding that the image involved an actual minor would also be persuasive in demonstrating the defendant‘s knowledge of the character of the material, including the age and actual existence of the performers. Where the title, the text, the visual representation, and other factors gleaned from the material or performance represent or depict the person as a minor, the trier of fact may infer that the person is an actual minor.60
{¶89} Where the state has proved that an actual minor was involved, other relevant factors to show the requisite scienter include (1) the number of the images; (2) the character of any websites viewed by the defendant; (3) the defendant‘s method of storing the images; (4) the defendant‘s state of mind; and (5) the availability and expense of quality digital imaging.61
{¶90} Kraft claims that the state failed to meet its burden for this element because it is difficult for a person to determine whether an image depicts real or virtual child pornography. Specifically, Kraft‘s expert in digital imaging testified that, after reviewing the images at issue, none of them could have been digitally created from a blank screen, but that he could not tell if they were the result of age-regression software or other digital manipulation.
3. Reproduction
{¶92} To establish a violation of R.C. 2907.322(A)(1), the state was required to prove that Kraft had created, recorded, photographed, filmed, developed, reproduced, or published any sexually oriented material involving a minor. The state can prove that an offender reproduced such material by presenting evidence that the offender downloaded images from the Internet onto a hard drive.62
{¶93} Officer Ruebusch, who examined Kraft‘s computer, testified that he found all but two of the images that served as the basis for all the charges on Kraft‘s hard drive in a zip file. He found the other two images, State‘s Exhibits 5 and 6, on Kraft‘s hard drive in an unallocated space for deleted files. Although Ruebusch testified that all the deleted files had been manually saved prior to deletion, he contradicted this testimony on cross-examination and stated that he could not tell if these files had been manually saved prior to deletion.
{¶94} Ultimately, we hold that state presented sufficient evidence of reproduction of all the images, including the deleted files, where none of the files were found in a temporary Internet cache; Kraft‘s hard drive contained a large number of images; Kraft actively sought child pornography and admitted that he had
4. Weight of the Evidence
{¶95} Finally, Kraft claims that his R.C. 2907.322(A)(1) convictions were against the manifest weight of the evidence. After reviewing the evidence in this case, we are confident that the trial court did not lose its way in determining what weight to give the evidence and in considering the credibility of the witnesses.63
IV. Conclusion
{¶96} In conclusion, we overrule Kraft‘s assignments of error and affirm his convictions for rape and pandering sexually oriented material involving a minor.
Judgment affirmed.
SUNDERMANN, J., concurs.
PAINTER, P.J., concurs separately.
PAINTER, P.J., concurring separately.
{¶97} Judge Cunningham‘s analysis is excellent. I write separately because I believe the inference in R.C. 2907.322(B)(3) is unconstitutional under Ashcroft.64 It states that: “the trier of fact may infer that a person in the material or performance involved is a minor if the material or performance, through its title, text, visual representation, or otherwise, represents or depicts the person as a minor.”65 This “looks like a duck and quacks” language might lead a court or a jury to find someone guilty without proof that an actual minor was involved.
{¶98} But the actual prohibitions in R.C. 2907.322(A) make clear that the crime has to involve an actual minor. Under these circumstances, there is no constitutional problem. I would hold that R.C. 2907.322(B)(3) is unconstitutional, but severable from the remainder of the statute.
{¶99} In this case, there was no resort to R.C. 2907.322(B)(3), so the convictions were proper. Therefore, with one reservation, I concur.
Please Note:
The court has recorded its own entry on the date of the release of this decision.