State v. ShiveleyState v. Shiveley
W. Stephens Haynes, Clermont County Public Defender, and Robert F. Benintendi, Assistant Public Defender, for appellant.
M. POWELL, P.J.
{¶ 1} Appellant, Brandon M. Shiveley, appeals the prison sentence imposed by the Clermont County Court of Common Pleas after he was convicted of pandering sexually oriented matter involving a minor and illegal use of minor in nudity-oriented material or performance. For the reasons discussed below, we affirm his sentence.
{¶ 3} In February of 2022, as part of a plea bargain, appellant plead guilty to five counts of pandering and one count of illegal use. The state dismissed the remaining charges. The court sentenced appellant to consecutive three-year sentences for three of the pandering counts, a consecutive six-year sentence for one of the pandering counts, and concurrent three-year sentences for one count of pandering and the one count of illegal use, resulting in an aggregate minimum prison sentence of 15 years.
{¶ 4} Appellant now appeals his sentence, raising the following as his only assignment of error:
{¶ 5} THE TRIAL COURT ERRED IN ORDERING APPELLANT‘S TERMS OF IMPRISONMENT TO RUN CONSECUTIVELY.
{¶ 6} In his assignment of error, appellant challenges the trial court‘s decision to impose consecutive sentences for four of his convictions. Appellant argues that the record does not support a finding that (1) consecutive sentences are not disproportionate to the
{¶ 7} We review a felony sentence according to
{¶ 8} As the Ohio Supreme Court has explained, “because
{¶ 9} Pursuant to the requirements of
{¶ 10} In his assignment of error, appellant challenges the second and third statutory findings of the trial court. We address them out of order.
REVICTIMIZATION IS A GREAT OR UNUSUAL HARM
{¶ 11} Appellant challenges the third statutory finding of the trial court, asserting that the harm caused by his multiple offenses was not so great or unusual that it warrants consecutive sentences. See
{¶ 12} This assertion ignores the well-established legal conclusion that children of child pornography are continuously revictimized. State v. Bonness, 8th Dist. Cuyahoga No. 96557, 2012-Ohio-474, ¶ 20. The United States Supreme Court has long held that “the distribution of photographs and films depicting sexual activity by juveniles is intrinsically
{¶ 13} Additionally, when amending
{¶ 14} Likewise, Ohio courts have held that child pornography is not a victimless crime, and appellant ‘s assertion that he simply “commit[ed] crime in his bedroom” ignores how “the dissemination of that child pornography exacerbates and continues [the] exploitation of the victimization of that child.” State v. Fraley, 12th Dist. Butler No. CA2021-10-131, 2022-Ohio-3270, ¶ 21. By possessing graphic images of minors depicted in sexual activity, appellant “enabl[ed] and support[ed] the continued production of child pornography, which entails continuous direct abuse and victimization of child subjects.” State v. Pearce, 12th Dist. Butler No. CA2021-12-161, 2022-Ohio-2617, ¶ 13. Thus, we reject appellant‘s
{¶ 15} In addition to arguing that there was no harm, appellant alternatively argues that the record does not support a finding that the harm was “great or unusual.” However, the record before the trial court at sentencing “highlights the manner of harm previously articulated by other courts and embraced by us today.” Id. at ¶ 31 (finding that the information provided by the presentence-investigative report supported the trial court‘s determination that the harm caused by appellant‘s possession of child pornography was great or unusual).
{¶ 16} Here, the record reflects that ORAS did not accurately capture the appellant‘s deviant sexual preferences.1 The indictment detailed the videos and images appellant downloaded, which included a prepubescent known victim engaged in a sexual act with a carrot, a prepubescent girl masturbating, a prepubescent girl unknowingly being filmed while showering, an infant with an adult male finger inserted into the anus, a prepubescent girl masturbating with a hair brush, a prepubescent female performing fellatio on an adult male who ejaculates on the child‘s face, prepubescent females digitally penetrating each other, a prepubescent female masturbating with a red sex toy, and several other videos and images of nude prepubescent females. Many of these videos and images were downloaded more than once and to different accounts.
{¶ 17} Due to the content of the material, an ORAS manual override was performed, placing appellant in the high range of risk. The record reflected a concern for the amount of time appellant had been viewing and trading child pornography, which, by his own admission, began four or five years ago. Appellant admitted that he has made several
{¶ 18} Appellant further argues that based on the plain language of the terms “great” and “unusual,” the harm caused to the children depicted in the videos and images does not qualify as either. Appellant states that because these terms are not defined in the statute, we are to use the plain and ordinary meanings of both terms in our analysis. Appellant defines “great” as “akin to being such in an extreme or notable degree,” and he defines “unusual” as something that is “not usual, common, or ordinary.” He thus concludes that the trial court was required to find that the harm to the minors be “extreme,” “uncommon,” or “exceptional” to impose consecutive sentences.
{¶ 19} Given the widespread use of social media platforms and online storage spaces, as well as the instantaneous transfer of information facilitated by this technology, there is no guarantee that any pornographic image or video of a child will ever be permanently removed from every space from which it could be retrieved. Regardless of how victims of child pornography progress through the remainder of their lives, these images have the possibility of living on indefinitely. To reiterate the United States Supreme Court, these images create a “permanent record.” As a result of this permanence, we find
DANGER TO THE PUBLIC
{¶ 20} Appellant also challenges the trial court‘s second statutory finding, alleging that his prison sentence is grossly disproportionate to any danger he might pose to the public. Appellant‘s proffered reasons for why “the record does not reflect that [he] put a member of the general public at risk,” include (1) that he committed these crimes from his bedroom, (2) that the probation department viewed community control as a reasonable sentencing option, and (3) that the ORAS evaluation categorized him as a “low risk” to commit future crime because he had no contact with the criminal justice system prior to these convictions.
{¶ 21} Appellant‘s argument that he never put a member of the general public at risk by confining his criminal behavior to his bedroom is not well-taken. As discussed above, consumers of child pornography victimize the children depicted therein by “enabling and supporting the continued production of child pornography, which entails continuous direct abuse and victimization of child subjects.” State v. Boggs, 12th Dist. Butler No. CA2019-07-114, 2020-Ohio-2881, ¶ 14. We also note that while the probation department gave some general parameters and guidelines to the court regarding community control, nothing in the record suggests that the probation department regarded community control to be a proper alternative to incarceration.
{¶ 22} Further, Ohio courts have found that there “are no specific statutory factors for the danger-to-the-public finding.” State v. Mitchell, 8th Dist. Cuyahoga No. 105053, 2017-Ohio-6888, ¶ 13; State v. Kiefer, 6th Dist. Ottawa No. OT-21-005, 2021-Ohio-3059, ¶ 18. While recidivism may indicate the danger an offender poses to the public,
{¶ 23} Appellant‘s “lack of a prior criminal record * * * is not by itself dispositive of whether he may reoffend and, in the process, remain a danger to the public.” State v. Balbi, 8th Dist. Cuyahoga No. 102321, 2015-Ohio-4075, ¶ 11. As noted by the trial court at appellant‘s sentencing, “recidivism may be likely because the offenses continued over a period of time in a continuing course of conduct * * * which included several attempts to discontinue these activities, only to eventually repeat the same behaviors.” While appellant attempts to paint his behavior as “on-again, off-again,” appellant opened seven different Snapchat accounts over the past several years, all of which were used to access and trade child pornography. Each time appellant‘s account was shut down, he would register a new email address with a new account so that he could continue this behavior.
{¶ 24} Appellant fails to explain how the imposition of consecutive sentences was disproportionate to the danger he poses to the public, particularly in light of nature of the content he viewed, his awareness of its severity, and his undeterred and continuous participation in the trading of pornographic images and videos involving children. We find that appellant failed to meet his burden of identifying clear and convincing evidence that the trial court‘s finding is not supported by the record.
{¶ 25} As a separate argument, appellant asserts that consecutive sentences are inappropriate where it “demean[s] the seriousness of other more violent crimes and harms to other victims,” citing State v. Hawley, 8th Dist. Cuyahoga No. 108254, 2020-Ohio-1270, ¶ 25. We note that appellant misplaces the Eighth District‘s discussion in Hawley. In reviewing whether Hawley‘s 56-year prison sentence demeaned the seriousness of other
CONCLUSION
{¶ 26} Appellant‘s “portrayal of this case as a run-of-the-mill child pornography possession case minimizes the true severity of the harm” caused to the children depicted in the videos and images that were found on appellant‘s various accounts. State v. Smith, 2021-Ohio-4234 at ¶ 32. Given the nature of the content in appellant‘s possession, as well as the length of time over which appellant viewed this content, we find that the record supports the trial court‘s determination that consecutive sentences were appropriate. Accordingly, appellant‘s sole assignment of error is overruled.
{¶ 27} Judgment affirmed.
HENDRICKSON and PIPER, JJ., concur.