STATE OF OHIO v. BENJAMIN SCHNEIDER

Portsmouth, OH - Criminal defense attorney represented Benjamin Schneider with multiple counts of pandering sexually oriented matter involving a minor, illegal use of a minor in a nudity oriented material or performance, voyeurism, and possessing criminal too charge.

{¶1} Benjamin Schneider appeals his convictions in two cases, Athens County

Court of Common Pleas Case Nos. 17CR0100 and 17CR0382, for multiple counts of

pandering sexually oriented matter involving a minor, illegal use of a minor in a nudityoriented material or performance, voyeurism, and possessing criminal tools. In his first

assignment of error, Schneider contends that the trial court erred when it failed to merge

certain offenses for purposes of sentencing. However, he failed in his burden to

establish R.C. 2941.25 prohibits multiple punishments for the offenses at issue.

Therefore, we reject his merger arguments.

{¶2} In his second assignment of error, Schneider asserts that insufficient

evidence supports his conviction for pandering sexually oriented matter involving a

minor in connection with video fragments of child pornography involving a Russian Athens App. No. 19CA1 2

minor. After viewing the evidence in a light most favorable to the prosecution, we

conclude that any rational trier of fact could have found the essential elements of this

count proven beyond a reasonable doubt. Therefore, we reject Schneider's argument.

{¶3} In his third assignment of error, Schneider maintains that the trial court

erred when it convicted him of ten counts of possessing criminal tools in violation of

R.C. 2923.24(A). Schneider claims that he used the ten items related to those counts in

concert, and the statute does not permit multiple convictions in that situation. However,

under the statute, whenever a person possesses or controls any substance, device,

instrument, or article with purpose to use it criminally, the person is guilty of possessing

criminal tools. The statute does not preclude multiple convictions for items used in

concert. Accordingly, we overrule the assignments of error and affirm the trial court's

judgment.

I. FACTS

{¶4} In January 2017, Schneider's minor stepdaughter discovered a camera in

a shower she was using. Schneider admitted that he had put the camera in the shower

to watch her and had put a second camera in her bedroom. His wife contacted the

authorities. Law enforcement collected and searched various electronics and storage

devices that were in the home and found several videos of Schneider's stepdaughter in

the bathroom. They also found video fragments of a child pornography file involving a

Russian minor.

{¶5} In Case No. 17CR0100, the Athens County grand jury indicted Schneider

on two counts of pandering sexually oriented matter involving a minor, ten counts of

illegal use of a minor in a nudity-oriented material or performance, six counts of Athens App. No. 19CA1 3

voyeurism, and six counts of possessing criminal tools. He pleaded not guilty.

Subsequently, in Case No. 17CR0382, the grand jury indicted Schneider on 128 counts

of illegal use of a minor in a nudity-oriented material or performance, six counts of

voyeurism, eight counts of pandering sexually oriented matter involving a minor, one

count of tampering with evidence, and five counts of possessing criminal tools. He also

pleaded not guilty to those charges, and the trial court consolidated the cases.

Subsequently, at the request of the state, in Case No. 17CR0382 the court dismissed

56 counts of illegal use of a minor in a nudity-oriented material or performance, four

counts of pandering sexually oriented matter involving a minor, and the tampering with

evidence count. Schneider waived his right to a jury trial, and the court conducted a

bench trial on the remaining counts.

{¶6} The trial court found Schneider guilty on 110 of the 111 remaining counts;

it found him not guilty on one count of possessing criminal tools. On July 17, 2018, the

trial court issued an entry sentencing Schneider on 109 counts, resulting in an

aggregate eight-year prison term. The court did not sentence him on Count 35 in Case

No. 17CR0382 even though the court had found him guilty on that count. After

Schneider filed a notice of appeal from the July 17, 2018 entry, he moved this court to

remand the case to the trial court to sentence him on Count 35 in Case No. 17CR0382

and issue a final, appealable order. Before we ruled on the motion, on December 18,

2018, the trial court issued an entry sentencing Schneider on that count. Subsequently,

we determined that we lacked jurisdiction over Schneider's appeal because the July 17,

2018 entry was not a final, appealable order and dismissed the appeal. Schneider then

appealed from the December 18, 2018 entry. Athens App. No. 19CA1 4

II. ASSIGNMENTS OF ERROR

{¶7} Schneider presents three assignments of error:

I. The trial court failed to merge allied offenses of similar import.

II. The trial court violated Mr. Schneider's rights to due process and a fair

trial when, in the absence of sufficient evidence, the trial court convicted

him of pandering sexually-oriented material involving a minor for Count

139(147) in case number 17CR0382.

III. The trial court erred when it convicted Mr. Schneider for multiple

counts of possession of criminal tools for individual items, used in concert,

in the commission of felony offenses.

III. ALLIED OFFENSES OF SIMILAR IMPORT

{¶8} In the first assignment of error, Schneider contends that the trial court

erred when it failed to merge allied offenses of similar import.

A. General Principles and Standard of Review

{¶9} The Double Jeopardy Clause of the Fifth Amendment to the United States

Constitution provides that no person shall "be subject for the same offence to be twice

put in jeopardy of life or limb.” "This protection applies to Ohio citizens through the

Fourteenth Amendment to the United States Constitution * * * and is additionally

guaranteed by the Ohio Constitution, Article I, Section 10.” State v. Ruff, 143 Ohio

St.3d 114, 2015-Ohio-995, 34 N.E.3d 892, ¶ 10. "This constitutional protection prohibits

multiple punishments in a single trial for the same conduct in the absence of a clear

indication of contrary legislative intent.” State v. Fannon, 2018-Ohio-5242, 117 N.E.3d

10, ¶ 129 (4th Dist.), citing Missouri v. Hunter, 459 U.S. 359, 366, 103 S.Ct. 673, 74

L.Ed.2d 535 (1983).

{¶10} "The General Assembly enacted R.C. 2941.25 to identify when a court

may impose multiple punishments[.]” Id. at ¶ 130. R.C. 2941.25 states: Athens App. No. 19CA1 5

(A) Where the same conduct by defendant can be construed to constitute

two or more allied offenses of similar import, the indictment or information

may contain counts for all such offenses, but the defendant may be

convicted of only one.

(B) Where the defendant's conduct constitutes two or more offenses of

dissimilar import, or where his conduct results in two or more offenses of

the same or similar kind committed separately or with a separate animus

as to each, the indictment or information may contain counts for all such

offenses, and the defendant may be convicted of all of them.

{¶11} The sentencing court has a mandatory duty to merge allied offenses.

State v. Stapleton, 4th Dist. Pickaway No. 19CA7, 2020-Ohio-4479, ¶ 50. However, the

defendant has the burden to establish R.C. 2941.25 prohibits multiple punishments. Id.

at ¶ 52. "We apply a de novo standard to review a trial court's determination of whether

offenses constitute allied offenses of similar import requiring merger under R.C.

2941.25.” Fannon at ¶ 131, citing State v. Williams, 134 Ohio St.3d 482, 2012-Ohio5699, 983 N.E.2d 1245, ¶ 28.

{¶12} The determination whether an offender has been found guilty of allied

offenses of similar import "is dependent upon the facts of a case because R.C. 2941.25

focuses on the defendant's conduct,” Ruff, 143 Ohio St.3d 114, 2015-Ohio-995, 34

N.E.3d 892, at ¶ 26, and "an offense may be committed in a variety of ways,” id. at ¶ 30.

In Ruff, the Supreme Court of Ohio explained that an accused may be convicted and

sentenced for multiple offenses when "(1) the offenses are dissimilar in import or

significance—in other words, each offense caused separate, identifiable harm, (2) the

offenses were committed separately, or (3) the offenses were committed with separate

animus or motivation.” Id. at ¶ 25. Athens App. No. 19CA1 6

B. Relevant Statutes

{¶13} R.C. 2907.08(C), the statute on voyeurism, states: "No person, for the

purpose of sexually arousing or gratifying the person's self, shall * * * surreptitiously

invade the privacy of another to videotape, film, photograph, otherwise record, or spy or

eavesdrop upon the other person in a state of nudity if the other person is a minor.” At

the time of Schneider's offenses, R.C. 2907.322(A)(1), the statute on pandering

sexually oriented matter involving a minor, stated: "No person, with knowledge of the

character of the material or performance involved, shall * * * [c]reate, record,

photograph, film, develop, reproduce, or publish any material that shows a minor

participating or engaging in sexual activity, masturbation, or bestiality[.]” Also, at the

time of Schneider's offenses, R.C. 2907.323(A)(1), the statute on illegal use of a minor

in a nudity-oriented material or performance, provided that with an exception not

applicable here, "[n]o person shall * * * [p]hotograph any minor who is not the person's

child or ward in a state of nudity, or create, direct, produce, or transfer any material or

performance that shows the minor in a state of nudity * * *.”

C. Counts 1, 31, and 52 in Case No. 17CR0382

{¶14} Schneider contends that the trial court should have merged Counts 1, 31,

and 52 in Case No. 17CR0382. Counts 1 and 52 alleged a violation of R.C.

2907.323(A)(1), and Count 31 alleged a violation of R.C. 2907.08(C). The supplemental

bill of particulars (1) indicated that Schneider committed Count 1 when he "did record

[his stepdaughter] in a state of nudity in the shower” and cited a specific video file, (2)

indicated that Schneider committed Count 31 when he "mounted a video camera to

watch [his stepdaughter] while showering nude as recorded in” the same video file cited Athens App. No. 19CA1 7

for Count 1, and (3) indicated that Schneider committed Count 52 when he "did

record/create the video file of [his stepdaughter] while partially nude in the shower” and

cited a different video file than the one cited for Counts 1 and 31. The videos appear to

have date and time information within their file names, which Schneider refers to as a

"recording timestamp.” Counts 1 and 31 related to an asf video file with a recording

timestamp of 12/18/16 at 22:34:34,1 and Count 52 related to a m4v video file with a

recording timestamp of 12/18/16 at 22:39:58.

{¶15} Schneider asserts that the recording timestamps demonstrate the video

files depict a single event that was recorded on December 18, 2016. He maintains that

"multiple files were created from a single recorded event” because the "camera

automatically stored recorded data in five-minute increments.” He claims merger is

appropriate because the offenses arose from the same event, involved similar import or

harm (using a camera to record his stepdaughter in a state of nudity in the bathroom),

and involved the same animus (recording his stepdaughter in the bathroom on

December 18, 2016).

{¶16} The state contends none of the counts merge. It asserts Schneider

committed Counts 1 and 31 with a separate animus. It also asserts the counts resulted

in separate, identifiable harm because for Schneider's stepdaughter, "knowing that a

video file was created is separate from knowing that her step-father was sexually

gratified by invading her privacy and watching her nude in the shower.” In addition, the

state argues that the video related to Counts 1 and 31 depicts a different event than the

video related to Count 52. Alternatively, it argues that even if Schneider's argument is



1 Throughout this opinion, we have changed the format in which the "recording timestamp” information

appears in the file names for ease of reading. Athens App. No. 19CA1 8

"factually sound,” the videos had different creation dates, had different file extensions,

and were saved in different folders, and a separate animus exists each time a video is

downloaded and saved.

{¶17} Schneider failed in his burden to show that the trial court should have

merged Counts 1 and 31. Each count resulted in separate, identifiable harm. When

Schneider mounted the video camera to watch his stepdaughter showering (Count 31),

he invaded her privacy. See R.C. 2907.08(C) (requiring a surreptitious invasion of

another's privacy). When he recorded her (Count 1), he created a permanent record of

her victimization. See generally State v. Martin, 149 Ohio St.3d 292, 2016-Ohio-7196,

75 N.E.3d 109, ¶ 12 ("child-nudity-oriented material leaves a permanent record that can

haunt a child into adulthood”).

{¶18} Schneider also failed in his burden to show that the trial court should have

merged Counts 1 or 31 with Count 52. Contrary to Schneider's suggestion, the video

files related to those counts do not depict a single event that a single camera

automatically stored in five-minute increments. Although the recording timestamps for

the video files are about five minutes apart, the video file related to Counts 1 and 31 is

about 15 minutes long, and the video file related to Count 52 is about 10 minutes long.

The footage in the file related to Counts 1 and 31 was filmed from a different angle than

the footage in the file related to Count 52. In the Counts 1 and 31 footage, the camera

appears to be inside and above the shower, looking down into the shower. In the Count

52 footage, the camera appears to be outside the shower but directed towards it. The

only way these videos could relate to a single event is if two cameras had been used,

and Schneider's merger argument does not consider that scenario. Athens App. No. 19CA1 9

{¶19} We overrule the first assignment of error to the extent it asserts the court

should have merged Counts 1, 31, and 52 in Case No. 17CR0382.

D. Counts 2, 32, and 58 in Case No. 17CR0382

{¶20} Schneider contends that the trial court should have merged Counts 2, 32,

and 58 in Case No. 17CR0382. The parties' arguments regarding these counts are

similar to their arguments regarding Counts 1, 31, and 52 in 17CR0382.

{¶21} Counts 2 and 58 alleged a violation of R.C. 2907.323(A)(1), and Count 32

alleged a violation of R.C. 2907.08(C). The supplemental bill of particulars (1) indicated

that Schneider committed Count 2 when he "did record [his stepdaughter] in a state of

nudity in the shower” and cited a specific video file, (2) indicated that Schneider

committed Count 32 when he "mounted a video camera to watch [his stepdaughter]

while showering nude as recorded in” the same video file cited for Count 2, and (3)

indicated that Schneider committed Count 58 when he "did record/create the video file

of [his stepdaughter] while nude in the shower and the toilet” and cited a different video

file than the one cited for Counts 2 and 32. Counts 2 and 32 related to an asf video file

with a recording timestamp of 12/21/16 at 09:57:26, and Count 58 related to a m4v

video file with a recording timestamp of 12/21/16 at 09:41:54.

{¶22} Schneider failed in his burden to show that the trial court should have

merged Counts 2 and 32. Each count resulted in separate, identifiable harm. When

Schneider mounted a camera to watch the victim showering (Count 32), he invaded her

privacy. See R.C. 2907.08(C) (requiring a surreptitious invasion of another's privacy).

When he recorded her (Count 2), he created a permanent record of her victimization.

See generally Martin, 149 Ohio St.3d 292, 2016-Ohio-7196, 75 N.E.3d 109, at ¶ 12 Athens App. No. 19CA1 10

("child-nudity-oriented material leaves a permanent record that can haunt a child into

adulthood”).

{¶23} Schneider also failed in his burden to show that the trial court should have

merged Counts 2 or 32 with Count 58. The video file related to Count 58 depicts the

victim entering the bathroom and using the toilet and shower; it ends while she is in the

shower but is not visible because the curtain is closed. The video file related to Counts

2 and 32 was filmed from the same angle and begins while the shower curtain is closed;

later in the video, the victim exits the shower. While it is possible that the two videos

may have been recorded around the same time, they were not recorded simultaneously.

"The recording of each video 'constitutes a new and distinct crime because "the mere

fact that the crimes occurred in quick succession does not mean that they were not

committed separately or with separate animus.” ' ” State v. Pedraza, 9th Dist. Medina

No. 19CA0049-M, 2020-Ohio-2661, ¶ 12, quoting State v. Duhamel, 8th Dist. Cuyahoga

No. 102346, 2015-Ohio-3145, ¶ 60, quoting State v. Eal, 10th Dist. Franklin No. 11AP460, 2012-Ohio-1373, ¶ 93. "In fact, 'multiple convictions are allowed for each

individual video file because a separate animus exists every time a separate image or

file is created and saved.' ” Id., quoting State v. Pippin, 2017-Ohio-6970, 94 N.E.3d

1186, ¶ 50 (1st Dist.). We therefore conclude that Schneider recorded each video

separately and with a separate animus. See id.

{¶24} Schneider's suggestion that he cannot be punished for recording each

video because his camera automatically stored footage from a single event in fiveminute increments is not well-taken. Schneider directs our attention to Detective Ryan

Gillette's testimony about video files on two SD cards. Detective Gillette testified that it Athens App. No. 19CA1 11

seemed like each file on one of the SD cards was "five minutes long,” and while he

could not confirm whether the files depicted one event without rewatching them, it

"sounds accurate” to say that they do. Detective Gillette testified that another SD card

appeared to contain files that depicted one event (the discovery of the camera and

aftermath) and that it was his understanding that the camera stored the files that way.

{¶25} The video files related to Counts 2, 32, and 58, were found on an external

hard drive and were not five-minutes long—each video was about 15 minutes long. The

fact that Schneider recorded videos of varying lengths (ranging from five to 15 minutes)

is circumstantial evidence that he had control over the length of the recordings. In

addition, unlike Count 2, Count 58 did not solely relate to the act of recording. Rather,

the supplemental bill of particulars specified that Schneider recorded or created the

video file associated with that count. There is evidence that Schneider created that file

separately from the video file related to Counts 2 and 32—the video files have different

file formats and were saved at different times according to the file creation dates.

{¶26} We overrule the first assignment of error to the extent it asserts the court

should have merged Counts 2, 32, and 58 in Case No. 17CR0382.

E. Counts 5 and 35 in Case No. 17CR0382

{¶27} Schneider contends that the trial court should have merged Counts 5 and

35 in Case No. 17CR0382. The parties' arguments regarding these counts are similar

to their arguments regarding Counts 1 and 31 in 17CR0382.

{¶28} Count 5 alleged a violation of R.C. 2907.323(A)(1), and Count 35 alleged

a violation of R.C. 2907.08(C). The supplemental bill of particulars (1) indicated that

Schneider committed Count 5 when he "did record [his stepdaughter] in a state of nudity Athens App. No. 19CA1 12

on the toilet” and cited a specific video file, and (2) indicated that Schneider committed

Count 35 when he "mounted a video camera to watch [his stepdaughter] while nude on

the toilet as recorded in” the same video file cited for Count 5. Both counts related to an

asf video file with a recording timestamp of 12/23/16 at 21:33:51.

{¶29} Schneider failed in his burden to show that the trial court should have

merged Counts 5 and 35. Each count resulted in separate, identifiable harm. When

Schneider mounted a camera to watch the victim on the toilet (Count 35), he invaded

her privacy. See R.C. 2907.08(C) (requiring a surreptitious invasion of another's

privacy). When he recorded her (Count 5), he created a permanent record of her

victimization. See generally Martin, 149 Ohio St.3d 292, 2016-Ohio-7196, 75 N.E.3d

109, at ¶ 12 ("child-nudity-oriented material leaves a permanent record that can haunt a

child into adulthood”).

{¶30} We overrule the first assignment of error to the extent it asserts the court

should have merged Counts 5 and 35 in Case No. 17CR0382.

F. Count 1 in Case No. 17CR0100 and

Counts 6, 7, 36, 38, and 139 in Case No. 17CR0382

{¶31} Schneider contends that the trial court should have merged Count 1 in

Case No. 17CR0100 and Counts 6, 7, 36, 38, and 1392 in Case No. 17CR0382.

Counts 1, 38, and 139 alleged a violation of R.C. 2907.322(A)(1). Counts 6 and 7

alleged violations of R.C. 2907.323(A)(1). Count 36 alleged a violation of R.C.



2 Schneider asserts that when the trial court sentenced him, it interchanged Count 139, which according

to the supplemental bill of particulars involved a video of his stepdaughter, and Count 147, which involved

the video fragments of child pornography. He did not assign this issue as error, noting that both counts

were for pandering and that the "count number reversal does not change the sentence structure.” In his

appellate brief, Schneider refers to the count involving his stepdaughter as Count 147(139) and the count

involving the fragments as 139(147). For the sake of simplicity, and consistent with the supplemental bill

of particulars, we will refer to the count involving his stepdaughter as Count 139 and the count involving

the fragments as Count 147. Athens App. No. 19CA1 13

2907.08(C). The parties' arguments regarding these counts are similar to their

arguments regarding Counts 1, 31, and 52 in 17CR0382.

{¶32} The bill of particulars in Case No. 17CR0100 indicated that Schneider

committed Count 1 in that case when he "did record a minor engaged in masturbation”

"on or about January 16, 2017 to January 19, 2017.” The bill of particulars did not

reference a specific video file for that count, but at trial, the state indicated it related to

an asf file with a recording timestamp of 1/16/17 at 22:44:01, which was located on a

micro SD card with a red stripe. In Case No. 17CR0382, the supplemental bill of

particulars (1) indicated that Schneider committed Count 6 when he "did record [his

stepdaughter] in a state of nudity in the shower” and cited a specific video file, (2)

indicated that he committed Count 7 when he "did record [his stepdaughter] in a state of

nudity in the shower” and cited a different video file, (3) indicated that he committed

Count 36 when he "mounted a video camera to watch [his stepdaughter] while

showering nude as recorded in” the same video file cited for Count 6, (4) indicated he

committed Count 38 when he "did record [his stepdaughter] while nude in the shower

masturbating” in a specific video file, and (5) indicated he committed Count 139 when

he "did record/create the video file of [his stepdaughter] while nude in the shower

masturbating” in another video file. The record indicates that Counts 6 and 36 related to

a video file that did not have a recording timestamp but had a file creation date of

1/16/17 at 10:49:43 PM, Count 7 related to an asf video file with a recording timestamp

of 1/16/17 at 22:28:59, Count 38 related to an asf video with a recording timestamp of

1/16/17 at 22:49:04, and Count 139 related to a m4v video with the same recording

timestamp as the video related to Count 38. Athens App. No. 19CA1 14

{¶33} Schneider failed in his burden to show that the trial court should have

merged Counts 6 and 36. Each count resulted in separate, identifiable harm. When

Schneider mounted a camera to watch the victim showering (Count 36), he invaded her

privacy. See R.C. 2907.08(C) (requiring a surreptitious invasion of another's privacy).

When he recorded her (Count 6), he created a permanent record of her victimization.

See generally Martin, 149 Ohio St.3d 292, 2016-Ohio-7196, 75 N.E.3d 109, at ¶ 12

("child-nudity-oriented material leaves a permanent record that can haunt a child into

adulthood”).

{¶34} Schneider failed to show that the trial court should have merged Counts 6

or 36 with Counts 1, 7, 38, or 139. Schneider suggests that because the creation date

for the video file related to Counts 6 and 36 is close in time to the recording timestamps

for the videos related to the other counts, all of the videos depict one event a single

camera automatically stored in multiple files. However, the video related to Counts 6

and 36 is filmed from a different angle than the other videos. In the Counts 6 and 36

footage, the camera appears to be outside the shower but directed towards it; in the

footage related to the other counts, the camera appears to be inside and above the

shower, looking down into the shower. The only way these videos could relate to a

single event is if two cameras had been used, and Schneider's merger argument does

not consider that scenario.

{¶35} Schneider failed to show that the trial court should have merged Count 38

and Count 139. Although the video files related to those counts appear to contain the

same footage (with the footage appearing upside down in one of the files), unlike Count

38, Count 139 did not solely relate to the act of recording. Rather, the supplemental bill Athens App. No. 19CA1 15

of particulars specified that Schneider recorded or created the video file associated with

Count 139. There is evidence that Schneider created that file separately from the video

file associated with Count 38—the video files have different file formats and were saved

at different times according to the file creation dates.

{¶36} Schneider also failed to show that the trial court should have merged

Count 1 with Count 7 or should have merged either of those counts with Count 38 or

Count 139. While it is possible that the footage in the Count 1 and Count 7 videos may

have been recorded around the same time as the footage in the Count 38/Count 139

videos, they were not recorded simultaneously. Again, "[t]he recording of each video

'constitutes a new and distinct crime because "the mere fact that the crimes occurred in

quick succession does not mean that they were not committed separately or with

separate animus.” ' ” Pedraza, 9th Dist. Medina No. 19CA0049-M, 2020-Ohio-2661, at

¶ 12, quoting Duhamel, 8th Dist. Cuyahoga No. 102346, 2015-Ohio-3145, at ¶ 60,

quoting Eal, 10th Dist. Franklin No. 11AP-460, 2012-Ohio-1373, at ¶ 93. "In fact,

'multiple convictions are allowed for each individual video file because a separate

animus exists every time a separate image or file is created and saved.' ” Id., quoting

Pippin, 2017-Ohio-6970, 94 N.E.3d 1186, at ¶ 50. We therefore conclude that

Schneider recorded the footage related to Count 1, Count 7, and Count 38/Count 139

separately and with a separate animus. See id. As we previously explained,

Schneider's suggestion that he cannot be punished for each video because his camera

automatically stored footage from a single event in five-minute increments is not welltaken given the circumstantial evidence that he had control over the length of the

recordings. Athens App. No. 19CA1 16

{¶37} We overrule the first assignment of error to the extent it asserts the court

should have merged Count 1 in Case No. 17CR0100 with Counts 6, 7, 36, 38, and 139

in Case No. 17CR0382.

IV. SUFFICIENCY OF THE EVIDENCE

{¶38} In the second assignment of error, Schneider contends that insufficient

evidence supported his conviction on Count 147 in Case No. 17CR0382 for pandering

sexually oriented matter involving a minor in violation of R.C. 2907.322(A)(1).

Schneider asserts that the state presented no evidence "that he intentionally obtained”

the fragments of child pornography related to that count, "that he watched them, or that

he knew the nature of the material.” He asserts that the state only showed that the

fragments "existed in the computer's RAM and were written into a swap file.” He claims

that in order to convict him, the trial court had to engage in impermissible inference

stacking—"the trial court had to infer that he intentionally obtained the video fragments

on his computer, and from that inference, infer that he knew the nature of the material.”

[Id. at 16]

{¶39} "When a court reviews a record for sufficiency, '[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 reasonable doubt.' ” (Alteration in Maxwell.) State v. Maxwell, 139 Ohio St.3d 12,

2014-Ohio-1019, 9 N.E.3d 930, ¶ 146, quoting State v. Jenks, 61 Ohio St.3d 259, 574

N.E.2d 492 (1991), paragraph two of the syllabus, superseded by constitutional

amendment on other grounds as stated in State v. Smith, 80 Ohio St.3d 89, 102, 684

N.E.2d 668 (1997), fn. 4, and following Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. Athens App. No. 19CA1 17

2781, 61 L.E.2d 560 (1979). This "limited review does not intrude on the jury's role 'to

resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable

inferences from basic facts to ultimate facts.' ” Musacchio v. U.S., ___ U.S. ___, 136

S.Ct. 709, 715, 193 L.Ed.2d 639 (2016), quoting Jackson at 319. Our role is "not to

assess 'whether the state's evidence is to be believed, but whether, if believed, the

evidence against a defendant would support a conviction.' ” State v. Dodson, 4th Dist.

Ross No. 18CA3629, 2019-Ohio-1465, ¶ 11, quoting State v. Thompkins, 78 Ohio St.3d

380, 390, 678 N.E.2d 541 (1997) (Cook, J., concurring).

{¶40} The prosecution may establish the elements of an offense by " 'direct

evidence, circumstantial evidence, or both. Circumstantial and direct evidence are of

equal evidentiary value.' ” (Citation omitted in Fannon.) Fannon, 2018-Ohio-5242, 117

N.E.3d 10, at ¶ 100, quoting State v. Swain, 4th Dist. Ross No. 01CA2591, 2002 WL

146204, *8 (Jan. 23, 2002). Circumstantial evidence is " ' "[t]estimony not based on

actual personal knowledge or observation of the facts in controversy, but of other facts

from which deductions are drawn, showing indirectly the facts sought to be proved.” ' ”

(Alteration in Nicely.) Dodson at ¶ 13, quoting State v. Nicely, 39 Ohio St.3d 147, 150,

529 N.E.2d 1236 (1988), quoting Black's Law Dictionary 221 (5th Ed.1979). "A trier of

fact may not draw '[a]n inference based * * * entirely upon another inference,

unsupported by any additional fact or another inference from other facts[.]' ” (Alterations

in Cowans.) State v. Cowans, 87 Ohio St.3d 68, 78, 717 N.E.2d 298 (1999), quoting

Hurt v. Charles J. Rogers Transp. Co., 164 Ohio St. 329, 130 N.E.2d 820 (1955),

paragraph one of the syllabus. Athens App. No. 19CA1 18

{¶41} Jarod Scott, a computer forensic specialist, testified that Schneider was

the "active user” of a partition on a hard drive containing a "swap file” that contained

eight video fragments of child pornography. Scott explained that

a computer has RAM, which is the memory that stores. Everything that's

being processed goes into RAM. And it's super fast, a lot faster than a

hard drive. But RAM has limited space, not nearly as big as a hard drive.

So if you have a lot of things running on your computer, a lot of programs

that have loaded into RAM, or if you suspend your computer, shut it down

but want to bring it back up fast, that information in RAM is written to the

hard drive. That's called a swap file. So when you, when the system

needs to access some of that information that used to be in RAM it pulls it

back from the swap file. Or when you resume your computer from being

hibernated it pulls or takes that swap file and pushes it back into RAM so

everything can be (inaudible) over again.

Scott admitted he had "[v]ery little” information about the fragments. He could show

they were "accessed by the computer” but did not know whether they had been played.

The trial court made additional inquiries:

BY THE JUDGE: * * * Can you just explain for me a little bit of the

difference between a video being, between a file being accessed and a

video being played?

A. The video could have been in RAM when it was downloaded but not

necessarily played. I'm sure there's also other scenarios on the computer

as accessing the file. Whether or not a user sat down and used a

program to view the file which caused it to go into RAM or it was in RAM

because it was being downloaded I can't say what caused it to go into

RAM. It's not just stored on the computer. At some point something on

the computer, some file, some process was accessing that file and put it

into RAM. It's not like it was just copied onto the hard drive.

BY THE JUDGE: For it to be moved into RAM does that require an active

input from a user, or is that something that a computer can do on its own?

Or if you can't answer that question explain to me why.

A. I guess I could give you two scenarios. If a user is using a program to

download a file the user initiated that download. So in that scenario a user

could, could load that file into RAM indirectly by causing the download. * *

* I'm not an expert on Windows or memory but a potential scenario that I

could see where a file gets loaded into RAM without user interaction Athens App. No. 19CA1 19

potentially is a virus scan program identifies a file and wants to scan it.

That virus scan program would need to access that file. So to put it into

RAM it would scan it and then it would come back out.

{¶42} Viewing the evidence in a light most favorable to the prosecution, a

rational trier of fact could have found the essential elements of R.C. 2907.322(A)(1)

proven beyond a reasonable doubt without violating the rule against inference-stacking.

Although Scott had limited information about the fragments, a rational trier of fact could

infer that Schneider created the fragments by downloading a file and infer that he did so

with knowledge of their character because he was the active user of the partition where

they were located and he had acquired other material of a similar character. Law

enforcement found "commercial pornography” and "still images of nude females” on an

external hard drive, and although no evidence was presented that those materials

involved minors, law enforcement also found the videos of his stepdaughter which

demonstrate his interest in material involving minors. The rule against inferencestacking "is 'extremely limited' and does not prohibit * * * drawing multiple, separate

inferences from the same facts.” State v. Everhart, 12th Dist. Fayette No. CA2020-03-

005, 2020-Ohio-4948, ¶ 17, quoting State v. Braden, 12th Dist. Preble No. CA2013-12-

012, 2014-Ohio-3385, ¶ 12.

{¶43} Because the conviction on Count 147 is supported by sufficient evidence,

we overrule the second assignment of error.

V. POSSESSING CRIMINAL TOOLS

{¶44} In the third assignment of error, Schneider contends that the trial court

erred when it convicted him of ten counts of possessing criminal tools in violation of

R.C. 2923.24(A), i.e., three computers, an external hard drive, two cameras, and four Athens App. No. 19CA1 20

memory cards. Schneider asserts that he used the items in concert, and "[n]othing in

R.C. 2923.24 indicates an express intent to create criminal liability for each individual

item, used together, to commit felonies.” He claims the title of the statute ("Possessing

criminal tools”) and a committee comment on it "suggest the opposite, using plural

terms such as 'tools,' 'things,' and 'items' leading to criminal liability.” He argues that to

the extent R.C. 2923.24 is ambiguous, the rule of lenity requires liberal construction of

the statute in his favor. He asks this court to reverse the ten possessing criminal tools

convictions and remand to the trial court to resentence him on one count of possessing

criminal tools.

{¶45} "The interpretation of a statute is a matter of law that an appellate court

reviews de novo.” State v. Simpson, 2018-Ohio-1348, 109 N.E.3d 595, ¶ 9 (4th Dist.),

citing State v. Straley, 139 Ohio St.3d 339, 2014-Ohio-2139, 11 N.E.3d 1175, ¶ 9. "The

primary goal of statutory construction is to give effect to the legislature's intent.” State v.

Gordon, 153 Ohio St.3d 601, 2018-Ohio-1975, 109 N.E.3d 1201, ¶ 8. If the language of

the statute is "clear and unambiguous, courts must apply the language as written.”

Simpson at ¶ 9, citing Straley at ¶ 9. If a criminal statute is ambiguous, " ' "doubts are

resolved in favor of the defendant.” ' ” Straley at ¶ 10, quoting State v. Young, 62 Ohio

St.2d 370, 374, 406 N.E.2d 499 (1980), quoting United States v. Bass, 404 U.S. 336,

348, 92 S.Ct. 515, 30 L.Ed.2d 488 (1971).

{¶46} Schneider does not direct our attention to any place in the record where

he raised the issue asserted in this assignment of error in the trial court. "Plain errors or

defects affecting substantial rights may be noticed although they were not brought to the

attention of the court.” Crim.R. 52(B). The defendant has the burden to "establish that Athens App. No. 19CA1 21

an error occurred, it was obvious, and it affected his or her substantial rights.” Fannon,

2018-Ohio-5242, 117 N.E.3d 10, at ¶ 21. "Notice of plain error under Crim.R. 52(B) is

to be taken with the utmost caution, under exceptional circumstances and only to

prevent a manifest miscarriage of justice.” State v. Long, 53 Ohio St.2d 91, 372 N.E.2d

804 (1978), paragraph three of the syllabus.

{¶47} Schneider does not suggest that we review his assignment of error using

a plain error analysis, and it is not our duty to construct a plain error argument on his

behalf. See State v. Steers, 4th Dist. Washington No. 11CA33, 2013-Ohio-3266, ¶ 20

(declining to sua sponte review an assignment of error using a plain error analysis). In

any event, no error occurred in this instance. R.C. 2923.24(A) states: "No person shall

possess or have under the person's control any substance, device, instrument, or

article, with purpose to use it criminally.” The statute makes it a crime to possess or

control a single item with the requisite purpose, and each item Schneider possessed or

had under his control with purpose to use it criminally supports a separate conviction for

possessing criminal tools. The statute does not preclude multiple convictions for items

used in concert, and Schneider does not assert that the possessing criminal tools

counts should have merged under R.C. 2941.25, so we do not address that issue.

{¶48} For the foregoing reasons, we overrule the third assignment of error.

Having overruled the assignments of error, we affirm the trial court’s

judgment.