STATE OF OHIO v. MICHAEL N. PASTER
No. 100458
Court of Appeals of Ohio, EIGHTH APPELLATE DISTRICT, COUNTY OF CUYAHOGA
July 24, 2014
[Cite as State v. Paster, 2014-Ohio-3231.]
JOURNAL ENTRY AND OPINION
Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-13-573090
BEFORE: Kilbane, J., Celebrezze, P.J., and E.A. Gallagher, J.
RELEASED AND JOURNALIZED: July 24, 2014
John B. Gibbons
2000 Standard Building
1370 Ontario Street
Cleveland, Ohio 44113
ATTORNEYS FOR APPELLEE
Timothy J. McGinty
Cuyahoga County Prosecutor
Holly Welsh
Assistant County Prosecutor
The Justice Center - 8th Floor
1200 Ontario Street
Cleveland, Ohio 44113
{¶1} Defendant-appellant, Michael Paster (“Paster”), appeals his convictions and sentence. For the reasons set forth below, we affirm his convictions, reverse his sentence, and remand for resentencing.
{¶2} In April 2013, Paster was charged in a five-count indictment. Cоunts 1 and 2 charged him with importuning. Count 3 charged him with compelling prostitution. Count 4 charged him with attempted unlawful conduct with a minor. Count 5 charged him with possession of criminal tools.1 The charges arise from an online investigation conducted by the Ohio Internet Crimes Against Children Task Force (“ICAC”), where one of its officers posed online as a 15-year-old girl.
{¶3} The matter proceeded tо a bench trial in July 2013, at which the following evidence was adduced.
{¶4} On March 29, 2013, Beth Holmes (“Holmes”), an investigator with ICAC, observed an ad posted on craigslist.com under the “casual encounters” section, titled “Looking to have some A$$ fun-m4w-35[.]” Holmes responded to the ad using the email address of her undercover profile, Janelle Bentley (“Bentley”). Holmes, posing as Bentley, exchanged email addresses with Paster, who was later determined to be the person who placed the craigslist ad. Holmes also exchanged cell phone numbers with Paster. Holmes provided Paster an undercover cell phone number. The two of them corresponded by text message from March 29, 2013 to April 2, 2013. During that time,
{¶5} Jeff Rice, a forensic examiner with ICAC, testified that he conducted an exam of Paster‘s cell phone and found text messages exchanged between Paster and Holmes, posing as Bentley.
{¶6} A review of the trial transcript reveals that the court found Paster guilty of both counts of imрortuning, attempted unlawful conduct with a minor, and possession of criminal tools, all with corresponding forfeiture specifications, and not guilty of compelling prostitution. The corresponding journal entry, however, states that the trial court found Paster “not guilty of possessing criminal tools [
{¶8} Paster now appeals, raising the following three assignments of error for review.
Assignment of Error One
The trial court committed plain error by imposing consecutive terms of incarceration.
Assignment of Error Two
The trial court erred by failing to grant [Paster‘s] motion for judgment of acquittal pursuant to [Crim.R. 29(A)] on each count of the indictment.
Assignment of Error Three
The trial court erred by permitting the introduction of business records of Craigslist, Facebook, and telephone records without the legally required [authentication] of these records.
Sentence
{¶9} This court has addressed the standard of review used by appellate courts when reviewing challenges to the imposition of consecutive sentences in State v. Venes, 2013-Ohio-1891, 992 N.E.2d 453 (8th Dist.). In Venes, we held that the standard of
In [Kalish], the supreme court considered the relevant standard of review in the post-Foster era in which the findings necessary to impose consecutive sentences under former
R.C. 2929.14(E)(4) had been declared unconstitutional. A plurality of the court held thatR.C. 2953.08(G)(2) was inapplicablе because it expressly related to “findings” that had been abrogated as unconstitutional. Instead, the plurality set forth the following method of reviewing criminal sentences: (1) is the sentence contrary to law and (2) if not, was it an abuse of discretion. Id. at ¶ 14-19.Kalish, as is any plurality opinion, is of “questionable precedential value.” See Kraly v. Vannewkirk, 69 Ohio St.3d 627, 633, 635 N.E.2d 323 (1994). Nevertheless, panels of this court have found it persuasive, at least insofar as it was applied to sentencing in the post-Foster era. See, e.g., State v. Martinez, 8th Dist. [Cuyahoga] No. 96222, 2011-Ohio-5832, ¶ 6, fn. 1.
The post-Foster era ended with the enactment of H.B. 86 and the revival of statutory findings necessary for imposing consecutive sentences under
R.C. 2929.14(C)(4) . By reviving the requirement for findings as a predicate for imposing consecutives, the ground offered by Kalish for rejecting the standard of review set forth in formerR.C. 2953.08 that it could not stand as a standard of review fоr a statute that improperly required findings of fact before imposing consecutive sentences was nullified. With the basis for the decision in Kalish no longer valid, and given that Kalish had questionable precedential value in any event, we see no viable reasoning for continuing to apply the standard of review used in that case. Henceforth, we review consecutive sentences using the standard of rеview set forth inR.C. 2953.08 .
Venes at ¶ 8-10.
{¶10}
{¶12} “In making these findings, a trial court is not required to use ‘talismanic words,’ however, it must be clear from the record that the trial court actually made the findings required by statute.” State v. Marton, 8th Dist. Cuyahoga No. 99253, 2013-Ohio-3430, citing Venes at ¶ 14, 17; State v. Goins, 8th Dist. Cuyahoga No. 98256, 2013-Ohio-263, ¶ 10.
{¶14} A review of the record in the instant cаse does not reflect that the trial court conducted the appropriate analysis required under
{¶15} Accordingly, the first assignment of error is sustained.
Sufficiency of the Evidence
{¶16} In the second assignment of error, Paster challenges his convictions, arguing that there was insufficient evidence to sustain them.
{¶17} The Ohio Supreme Court in State v. Diar, 120 Ohio St.3d 460, 2008-Ohio-6266, 900 N.E.2d 565, ¶ 113, explained the standard for sufficiency of the evidence as follows:
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. Thompkins (1997), 78 Ohio St.3d 380, 386, 1997-Ohio-52, 678 N.E.2d 541. In reviewing such a challenge, “[t]he 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 rеasonable doubt.” State v. Jenks (1991), 61 Ohio St.3d 259, 574 N.E.2d 492, paragraph two of the syllabus, following Jackson v. Virginia (1979), 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560.
Importuning
{18} Paster first challenges his importuning convictions in violation of
No person shall solicit another by means of a telecommunications device * * * to engage in sexual activity with the offender when the offender is eighteen years of age or older and * * * [t]he other person is a law enforcement officer posing as a person who is thirteen years of age or older but less than sixteen years of age, the offender believes that the other person is thirteen years of age or older but less than sixteen years of age or is reckless in that regard, and the offender is four or more years older than the age the law enforcement officer assumes in posing as thе person who is thirteen years of age or older but less than sixteen years of age.
{¶19} Paster claims the evidence does not demonstrate that he solicited sexual activity from a minor female. We disagree.
{¶20} In the instant case, the record demonstrates that Paster, who was 37 years old at the time, sent multiple sexually explicit text messages to Bentley. Holmes, рosing as Bentley, texted Paster on two occasions that she was 15 years old, texted him that he was twice her age, and made references that she was a virgin. Holmes testified that she “received several text messages as to what [Paster] wanted to do, how [he] wanted to engage in sexual activity with a 15-year-old.”
{¶21} When reviewing this evidence in a light most favorable to thе state, we find sufficient evidence to sustain his importuning convictions.
{¶22} Paster next challenges his attempted unlawful sexual conduct with a minor conviction, in violation of
No person, purposely or knowingly, and when purpose or knowledge is sufficient culpability for the commission of an offense, shall engage in conduct that, if successful, would constitute or result in the offense.
No person who is eighteen years of age or older shall engage in sexual conduct with another, who is not the spouse of the offender, when the offender knows the other person is thirteen years of age or older but less than sixteen years of age, or the offender is reckless in that regard.
{¶23} Paster argues that his act of driving to the video store in Parma is insufficient tо demonstrate a “substantial step” to complete the offense of attempted unlawful sexual conduct with a minor.
{¶24} In State v. Schaefer, 155 Ohio App.3d 448, 2003-Ohio-6538, 801 N.E.2d 872, ¶ 14 (2d Dist.), the Second Appellate District held that the defendant‘s act of driving to meet a person who he believed was a 14-year-old girl he had solicited over the internet for the purpose of engaging in sexual activity was a substantial stеp in the commission of the offense of unlawful sexual conduct with a minor, and that the act of driving to the arranged meeting spot on the date and time planned was strongly corroborative of his criminal purpose. See also State v. Tarbay, 157 Ohio App.3d 261, 2004-Ohio-2721, 810 N.E.2d 979 (1st Dist.); State v. Bonness, 8th Dist. Cuyahoga No. 96557, 2012-Ohio-474, discretionary appeal not allowed, 132 Ohio St.3d 1482, 2012-Ohio-3334, 971 N.E.2d 960.
{¶26} Accordingly, we find sufficient evidence to sustain Paster‘s attemptеd unlawful sexual conduct with a minor conviction.
Possession of Criminal Tools
{¶27} Lastly, within this assigned error, Paster argues that there was insufficient evidence to sustain his possession of criminal tools conviction in violation of
{¶28} The journal entries in the instant case state that Paster was found not guilty of possession of criminal tools. A review of the record reveals that the state did not object to the “not guilty” finding at the trial court, nor did the state file a cross-appeal
{¶29} Accordingly, the second assignment of error is overruled.
Authentication of Records
{¶30} In the third assignment of error, Paster argues the trial court erred by permitting the introduction of the craigslist ad, Facebook account printouts, and cell phone records. He contends that these records arе business records that were not properly authenticated before they were admitted into evidence.
{¶31} We note that “[t]he admission or exclusion of relevant evidence rests within the sound discretion of the trial court.” State v. Pruitt, 8th Dist. Cuyahoga No. 98080, 2012-Ohio-5418, ¶ 10, quoting State v. Hamilton, 8th Dist. Cuyahoga No. 86520, 2006-Ohio-1949.
{¶32} Evid.R. 901 governs authentication and provides a liberal standard for the authentication of telephone calls. Pruitt at ¶ 11, citing State v. Teague, 8th Dist. Cuyahoga No. 90801, 2009-Ohio-129. Under Evid.R. 901(A), the requirement of authentication for evidence to be admissible “is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims.” This court has stated:
Circumstantial evidence, as well as direct, may be used to show authenticity. Moreover, the threshold standard for authenticating evidence pursuant to Evid.R. 901(A) is low, and “does not require conclusive proof of аuthenticity, but only sufficient foundational evidence for the trier of fact to conclude that * * * [the evidence] is what its proponent claims it to be.”
(Citations omitted.) Pruitt at ¶ 11, quoting Teague.
{¶34} Therefore, the third assignment of error is overruled.
{¶35} Accordingly, we affirm Paster‘s convictions, rеverse his sentence, and remand for a resentencing hearing.
It is ordered that appellee and appellant share 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 dеfendant‘s conviction having been affirmed, any bail pending appeal is terminated.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure.
MARY EILEEN KILBANE, JUDGE
EILEEN A. GALLAGHER, J., CONCURS;
FRANK D. CELEBREZZE, JR., P.J., DISSENTS (SEE SEPARATE OPINION)
FRANK D. CELEBREZZE, JR., P.J., DISSENTING:
{¶37} As stated by the majority,
{¶38} In the case at hand, the trial court stated the following with respect to imposing consecutive sentences:
This court is running counts 1 and 23 consecutive because of the seriousness of this crime, because to do otherwise would demean the
seriousness of this offense, and because this court finds that the public does need to be protected from you. * * *
We will run them consecutive because one sentence alone would not protect the public from this behavior and the seriousness would be seriously demeaned otherwise.
{¶39} In my view, the trial court‘s statements satisfied the mandates of
{¶40} Accordingly, I wоuld overrule appellant‘s first assignment of error and affirm his sentence.