State v. RubinState v. Rubin
JUDGMENT: AFFIRMED
Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-16-611747-A
RELEASED AND JOURNALIZED: August 2, 2018
Eric M. Levy
55 Public Square, Suite 1600
Cleveland, Ohio 44113
ATTORNEYS FOR APPELLEE
Michael C. O‘Malley
Cuyahoga County Prosecutor
BY: Carl Sullivan
Assistant County Prosecutor
Justice Center, 9th Floor
1200 Ontario Street
Cleveland, Ohio 44113
{¶1} Defendant-appellant, Amir Rubin, appeals his convictions and sentence. He raises five assignments of error for our review:
- The trial court erred when it imposed consecutive sentences absent any analysis of the statutory criteria and where its findings under
R.C. 2929.14(C)(4) are not supported by the evidence and facts in the record. - The trial court erred when it imposed a ten-year prison sentence upon appellant the length of which is not supported by the record.
- The trial court erred in finding appellant guilty where the evidence presented at trial was insufficient to overcome appellant‘s
Crim.R. 29 motion and to support a conviction at the close of the evidence. - The trial court erred in finding appellant guilty after a jury trial where the manifest weight of the evidence did not support appellant‘s convictions.
- The trial court committed plain error when it failed to instruct the jury to find whether minors depicted were real children or virtual images.
{¶2} Finding no merit to his arguments, we affirm.
I. Procedural History and Factual Background
{¶3} In November 2016, Rubin was indicted on 95 counts related to child pornography: 21 counts of pandering sexually oriented matter involving a minor in violation of
{¶5} Investigator Frattare explained that he and other officers began the investigation by looking at a “peer to peer program” that is “known as E-Mule.” Between November 8, 2014 and March 2, 2015, the first IP address, 24.210.238.50, made 11 files of suspected child pornography available for sharing. The investigators were able to download 5 complete and 6 partial files, and determined that 6 of the 11 files were child pornography.
{¶6} Between June 12, 2015 and October 19, 2015, the investigators attempted to download 54 files of known or suspected child pornography from the second IP address, 24.210.228.196. Of those 54 files, they downloaded 7 complete and 4 partial files, and determined that 7 of the 54 were child pornography. Based on this information, the investigators obtained a search warrant of the business that used the IP addresses.
{¶7} Investigator Frattare and other officers executed the search warrant. Rubin was the only person there at the time. There were several rooms, including a main office area, a large work area, supply areas, a garage, and a laundry room. The investigators found two computers in the office area. One computer was on a “simple” desk with a couple of drawers. The “simple”
{¶8} The other computer, a laptop, was on a “more modern desk with a credenza above it,” which they determined belonged to Rubin. The laptop was running and had “the E-Mule icon for the peer to peer program” on the desktop. It also had a “U Torrent.exe” icon, a shortcut to the “Bit Torrent network,” which is another peer-to-peer network. There was a men‘s wallet beside the laptop containing Rubin‘s credit cards and a driver‘s license. There was a credit card belonging to Rubin on the desk next to the computer. There were also several name badges on the desk from conferences or trade shows with Rubin‘s name on them.
{¶9} Investigator Frattare explained that when they execute search warrants, they use a “mobile investigations vehicle,” which is a van divided into two sections. The van has an interview section in the back, and various “forensic work stations” in the front that allow the officers to examine hardware and software devices in the field.
{¶10} Rubin voluntarily spoke to the investigators during the search. He told them that he and his father were the only people who worked there. Rubin agreed that Bit Torrent and E-Mule were installed on his computer. He also agreed that he used the programs for personal use, not business. He told the officers that he used peer-to-peer networks to download “T.V., music and movies.”
{¶11} Jason Howell, a digital forensics investigator for the Cuyahoga County‘s Prosecutor‘s Office, assigned to the ICAC, testified that he operates mobile investigations when investigators conduct “on scene triage examinations of computer evidence during search warrants.” He was in charge of the mobile investigations vehicle when investigators executed the search warrant at Yeda, L.L.C.
{¶13} Investigator Howell testified that he found “search terms” on the E-Mule software that a user of the laptop entered into the program. The user of the Dell laptop entered search terms that included “Nastia Mouse,” which he explained was the name of a series of images of females from infants to teens in various states of nudity. It also included other common child pornography search terms such as “PTHC, PTSC, 16YO, 15YO, 14YO, 12YO, Evelyn, jailbait.” PTSC “stands for preteen softcore.”
{¶14} Investigator Howell discovered that multiple “USB devices” had been connected to the laptop. When a file is accessed, “Windows operating system” creates link files. The files that the user connected to the laptop were files of child pornography relating to children from 3 to 16 years old. He also found child pornography videos on the computer; one was titled, “12Y Evelyn blow job.” In sum, Investigator Howell discovered hundreds of child pornography images and videos on the laptop computer. He also examined an external hard drive and USB drive that were found in the storage area of the building. These devices also had hundreds of child pornography videos and images. The child pornography files were “created” between 2008 and 2015.
{¶16} Vassel testified that he started his company, Midwest Data Group, in September 2001. Before starting his own company, he worked for Olmsted Township Police Department. He became a police officer in 1991. Vassel testified his examination showed that someone accessed files on the laptop computer after the search warrant was executed (at 11:23 a.m.) but before the “write blocker” was installed (at 11:47 a.m.). He explained that “[t]he “write blocker” is “essentially an evidence bag” that “protects the integrity of the data of the information stored on the computer.” Thus, Vassel stated that Investigator Howell could not have been correct when he stated that no one accessed the laptop before the write blocker was installed. Vassel further stated that in his opinion, the laptop was not running the E-Mule program at the time the computer was seized.
{¶17} At the close of his case, Rubin renewed his
{¶18} The jury found Rubin not guilty of two counts of second-degree illegal use of a minor in nudity-oriented material or performance, one count of second-degree pandering sexually oriented matter involving a minor, and two counts of fifth-degree illegal use of a minor in nudity-oriented material or performance. The jury found Rubin guilty of the remaining 90 counts.
{¶19} The trial court merged Counts 54 through 94 into Counts 11 through 51. The state elected to proceed on the higher level felony counts. Thus, the trial court sentenced Rubin on Counts 1 through 51. The trial court sentenced Rubin to a total of ten years in prison; four years
{¶20} It is from this judgment that Rubin appeals. We will address Rubin‘s assignments of error out of order for ease of discussion.
II. Sufficiency of the Evidence
{¶21} In his third assignment of error, Rubin argues that the trial court erred when it denied his
{¶22}
{¶23} Rubin first argues that the state failed to present sufficient evidence with respect to the “knowledge” element for pandering under
(A) No person, with knowledge of the character of the material or performance involved, shall do any of the following:
(1) Create, record, photograph, film, develop, reproduce, or publish any material that shows a minor participating or engaging in sexual activity, masturbation, or bestiality;
(2) Advertise for sale or dissemination, sell, distribute, transport, disseminate, exhibit, or display any material that shows a minor participating or engaging in sexual activity, masturbation, or bestiality;
* * *
(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}
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.
{¶25} Specifically, Rubin contends that the state failed to present sufficient evidence that he “knew what the material was when it was downloaded and thus ‘created’ on his computer or when it was transferred/disseminated to other users on the file sharing network.” Rubin further
{¶26} The state may use either direct or circumstantial evidence to prove the essential elements of an offense. Jenks, 61 Ohio St.3d at 272, 574 N.E.2d 492. “‘Circumstantial evidence * * * is proof of facts or circumstances by direct evidence from which [the factfinder] may reasonably infer other related facts which naturally and logically follow according to the common experience of mankind.‘” State v. Rohr-George, 9th Dist. Summit No. 23019, 2007-Ohio-1264, ¶ 21, quoting State v. Blankenship, 9th Dist. Wayne No. 2815, 1994 Ohio App. LEXIS 4230 (Sept. 21, 1994). Thus, while we agree with Rubin that there is no direct evidence of his knowledge of the material, we can infer the element of knowledge from the evidence presented.
{¶27} The state presented evidence regarding the titles of the files found on Rubin‘s computer, which included many common child pornography terms. In fact, Rubin had hundreds of child pornography images and videos on his laptop, an external hard drive, and a storage device. In fact, the state established that Rubin had been downloading and sharing child pornography files since 2008. The names of many of the files included common child pornography terms, such as “PTHC” for “preteen hardcore.” There were also videos being downloaded at the time of the search with the titles “Evelyn 12YO Evelyn 2010” and “PTHC 2009 New Brianna Jesse.” Investigator Frattare explained that “YO” meant “years old.” The state further presented evidence of Rubin‘s searches in the E-Mule program, which included many common child pornography search terms.
{¶28} Indeed, it is mystifying to us that Rubin can claim that he was not aware of the content of the child pornography files when the state presented evidence that he entered search
{¶29} Thus, construing the evidence in a light most favorable to the state, a rational trier of fact could conclude that Rubin had knowledge of the content of the images and videos.
{¶30} Rubin next contends that the state failed to present sufficient evidence relating to Counts 1, 2, 3, 5, and 6, which charged pandering under
{¶31} Investigator Frattare testified that he and other investigators were able to download 22 complete or partial child pornography files from Rubin‘s E-Mule program. This evidence, if believed, establishes that Rubin disseminated child pornography to the investigators. Thus, the state presented sufficient evidence that Rubin was guilty of
{¶32} Rubin‘s third assignment of error is overruled.
III. Manifest Weight of the Evidence
{¶33} In his fourth assignment of error, Rubin argues that his convictions were against the manifest weight of the evidence.
{¶34} Unlike a sufficiency challenge, a manifest weight of the evidence challenges
{¶35} Rubin first incorporates his sufficiency arguments into his arguments challenging the weight of the evidence. He claims that because the state‘s evidence was not sufficient to convict him, it was also against the manifest weight of the evidence. For the reasons we previously stated, we find no merit to this argument.
{¶36} Rubin further argues that his expert established that the investigators did not properly preserve the Dell laptop “through an uninterrupted chain of custody.” Rubin‘s expert, Vassel, testified that he found that the Dell laptop had been accessed between the time the investigators seized it and the time they placed the write blocker on it. The jury, however, heard the state‘s witnesses testify that they did not do anything to the laptop before Investigator Howell placed the write blocker on it. The jury may take note of any inconsistencies and resolve them accordingly, “believ[ing] all, part, or none of a witness‘s testimony.” 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). The jury clearly believed the state‘s witness over Rubin‘s, as it was
{¶37} Sitting as a “thirteenth juror,” reviewing the entire record, weighing the evidence and all reasonable inferences, and considering the credibility of witnesses, we conclude that the jury did not clearly lose its way and create such a manifest miscarriage of justice that Rubin‘s convictions should be reversed for a new trial. Thompkins at 387.
{¶38} Accordingly, Rubin‘s fourth assignment of error is overruled.
IV. Consecutive Sentences
{¶39} In his first assignment of error, Rubin concedes that the trial court made the proper findings under
{¶40} An appellate court must conduct a meaningful review of the trial court‘s sentencing decision. State v. Johnson, 8th Dist. Cuyahoga No. 97579, 2012-Ohio-2508, ¶ 6, citing State v. Hites, 3d Dist. Hardin No. 6-11-07, 2012-Ohio-1892.
some sentences do not require the findings that
R.C. 2953.08(G) specifically addresses. Nevertheless, it is fully consistent for appellate courts to review those sentences that are imposed solely after consideration of the factors inR.C. 2929.11 and2929.12 under a standard that is equally deferential to the sentencing court. That is, an appellate court may vacate or modify any sentence that is not clearly and convincingly contrary to law only if the appellant court finds by clear andconvincing evidence that the record does not support the sentence.
State v. Marcum, 146 Ohio St.3d 516, 2016-Ohio-1002, 59 N.E.3d 1231, ¶ 23.
{¶41}
(a) The offender committed one or more of the multiple offenses while the offender was awaiting trial or sentencing, was under a sanction imposed pursuant to section
2929.16 ,2929.17 , or2929.18 of the Revised Code, or was under postrelease control for a prior offense;(b) At least two of the multiple offenses were committed as part of one or more courses of conduct, and the harm caused by two or more of the multiple offenses so committed was so great or unusual that no single prison term for any of the offenses committed as part of any of the courses of conduct adequately reflects the seriousness of the offender‘s conduct;
(c) The offender‘s history of criminal conduct demonstrates that consecutive sentences are necessary to protect the public from future crime by the offender.
{¶42} At the sentencing hearing, the trial court indicated that it had reviewed the presentence investigation report, Rubin‘s pretrial compliance report, as well as his sentencing memorandum and letters that people wrote on his behalf. The trial court then heard from defense counsel, the state, and Rubin.
{¶43} Defense counsel informed the court that Rubin had no prior criminal history. Rubin had also been attending individual and group counseling sessions with a psychotherapist for “well over a year.” The psychotherapist he had been seeing “handles more sex offenders than anybody” in northeast Ohio. Additionally, Rubin had been active in a men‘s support group. Defense counsel further informed the court that Rubin‘s 70-year-old father was having a very hard
{¶44} The state requested the court to consider the fact that the jury found that Rubin shared hundreds of videos on his devices for at least three and a-half years before he was arrested. The state indicated that Rubin was not a person who looked at child pornography a couple of times and then deleted it. The state maintained that “thousands of files had been shared,” but that they only charged 91 images and videos in this case. The state requested the trial court to send Rubin to prison.
{¶45} Rubin talked to the court next. He explained his role in the family business. He discussed his support system, including many family members who were at the sentencing hearing. Rubin told the court that he sought treatment and counseling on his own. He “took two standardized tests that clearly show [he is] not attracted to or threat to children in anyway.” He also regularly attended a 12-step program for sex addicts and had been doing so for nearly two years.
{¶46} The court told Rubin that it had presided over his trial, and in doing so, it was forced to look at all of the child pornography videos and images. The court explained that it was “very disturbing” to everyone who had to look at them. The court told the defendant with all of his findings of guilt, it could sentence him to “hundreds of years” in prison. The court further explained that because of “people like [him],” people continue to make “these horrible videos and
{¶47} The court told Rubin that it “applauded” the fact that he was working with a psychiatrist and had a sponsor, and that he was trying to make himself better. But the court stated that it could not sentence him to community control sanctions. The court indicated that it had considered the record, the oral statements made at sentencing, the presentence investigation report, the purposes and principles of sentencing under
{¶48} The court imposed its aggregate sentence of ten years, ordering that several of the counts be served consecutive to each other. In doing so, the trial court made the proper findings under
{¶49} After review, we conclude that the record supports the trial court‘s imposition of consecutive sentences. The state only indicted him on charges back to 2012, but Rubin had been downloading and sharing images and videos of child pornography since 2008. The state played videos in court that Rubin had shared with others that had very young girls in various sexual acts with adult males. As the trial court indicated, the victims of child pornography are harmed each time someone views or shares an image or video.
{¶50} Accordingly, we find that the record supports the trial court‘s imposition of consecutive sentences.
{¶51} Rubin‘s first assignment of error is overruled.
V. Mitigating Sentencing Factors
{¶52} Rubin contends in his second assignment of error that a “ten-year prison sentence”
{¶53} When sentencing a defendant, the court must consider the purpose and principles of felony sentencing set forth in
{¶54}
{¶55} Trial courts, however, are not required to make factual findings under
{¶57} The trial court expressly stated that it considered the purposes and principles of felony sentencing, as well as the factors listed in
{¶58} As this court stated in State v. Mahan, 8th Dist. Cuyahoga No. 95696, 2011-Ohio-5154, the defendant was a first-time offender, as Rubin is here. Mahan also had the support of family and friends, was gainfully employed, and had attended 100 meetings for sexual addicts. This court stated:
We acknowledge that a 16 year prison term imposed on a first-time offender who has, by all accounts, led an otherwise productive, law abiding life is a harsh sentence and is perhaps not one that we may have imposed. Nonetheless, the sentence was significantly less than what the court could have imposed based on defendant‘s 95 convictions. There was ample testimony in the record of the harm that has been, and continues to be, inflicted upon the victims who are the subjects of the material being viewed in these types of cases. The images, once uploaded, continue to circulate on the internet where individuals, like defendant, view them and make them available for viewing by others. The wide range of sentences that have been apparently imposed on defendants convicted of similar offenses is the result of the discretion vested in the trial court. Defendant‘s sentence was within the statutory range, lawful, and supported by the record, thus we cannot say it was unconscionable or otherwise an abuse of the trial court‘s discretion.
{¶60} Accordingly, Rubin‘s second assignment of error is overruled.
VI. Real versus Virtual Children
{¶61} In his fifth assignment of error, Rubin contends that the trial court committed plain error when it failed to instruct the jury that it had to find that the minors depicted in the images and videos were actual children and not virtual ones. Rubin acknowledges that his trial counsel failed to raise this issue in the trial court, and thus, we review for plain error.
{¶62} Under
{¶63} In State v. Tooley, 114 Ohio St.3d 366, 2007-Ohio-3698, 872 N.E.2d 894, the Ohio Supreme Court held that the state must prove beyond a reasonable doubt that a real child is depicted to support a conviction for possession of child pornography under either
{¶64} The defendant in Tooley argued that in light of Ashcroft v. Free Speech Coalition, 535 U.S. 234, 122 S.Ct. 1389, 152 L.Ed.2d 403 (2002)
{¶65} Instead, the high court explained that “[i]n most cases, meeting this burden will require presentation of the images themselves. Expert witnesses may not be needed if the state‘s assertion that an actual child is involved goes unchallenged.” Id. at ¶ 49. The court noted that “despite advances in technology, ‘[j]uries are still capable of distinguishing between real and virtual images.‘” Id. at ¶ 50, quoting United States v. Kimler, 335 F.3d 1132, 1142 (10th Cir.2003).
{¶66} In this case, the state showed the jury the images involved for each count. Neither Rubin nor his expert claimed that the images were not real children. Accordingly, we find no error on the part of the trial court, plain or otherwise.
{¶67} Rubin‘s fifth assignment of error is overruled.
{¶68} 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
MARY J. BOYLE, JUDGE
EILEEN A. GALLAGHER, A.J., and ANITA LASTER MAYS, J., CONCUR