STATE OF OHIO v. GARY D. LEE, JR

Youngstown, Ohio - Criminal defense attorney represented Gary D. Lee, Jr. with two counts of pandering sexually oriented matter involving a minor and two counts of pandering obscenity involving a minor charges.

On September 29, 2020, the trial court issued a judgment entry in

conformance with App. R. 9(D)2, which incorporates a jointly-submitted statement of facts

regarding the jury trial and the sentencing hearing. The following facts are taken from the

September 29 judgment entry.

{¶5} Three witnesses testified on behalf of the state at the jury trial held on

January 27, 2020: Captain Troy Watson and Lieutenant Charles Saler of the Carroll

County Sheriff's Office, and Clairice Cowgill, a computer forensic specialist with the

Bureau of Criminal Investigation in the Office of the Ohio Attorney General.

{¶6} On April 3, 2019, the Carroll County Sheriff's Department executed a search

warrant for electronic devices, computer equipment, and storage devices at a residence

owned by Appellant's mother and step-father. Appellant resided in the basement of the

home.

{¶7} The search yielded a micro-SD card with 10,657 images, which was found

"in a metal box in a desk in the Defendant's living area and among his other personal

items.” (9/29/20 J.E., p. 3.) A second search warrant was secured for the contents of the

micro-SD card. Appellant conceded during an interview with police that the micro-SD

card belonged to him.



2 App. R. 9(D), captioned "Agreed Statement as the Record on Appeal,” reads, in relevant part:

(1) In lieu of the record on appeal as defined in division (A) of this rule, the parties, no later

than ten days prior to the time for transmission of the record under App.R. 10, may prepare

and sign a statement of the case showing how the issues raised in the appeal arose and

were decided in the trial court and setting forth only so many of the facts averred and

proved or sought to be proved as are essential to a decision of the issues presented. If

the statement conforms to the truth, it, together with additions as the trial court may

consider necessary to present fully the issues raised in the appeal, shall be approved by

the trial court prior to the time for transmission of the record under App.R. 10 and shall

then be certified to the court of appeals as the record on appeal and transmitted to the

court of appeals by the clerk of the trial court within the time provided by App.R. 10. – 4 –

Case No. 20 CA 0941

{¶8} Captain Watson and Lieutenant Saler spent two to three days examining

the contents of the micro-SD card, due to the voluminous number of images on the card.

Other than the two images charged in the indictment, the remaining contents of the microSD card are not in the record, as the trial court sustained a motion in limine filed by

Appellant to prohibit the state from publishing any other images on the micro-SD card to

the jury.

{¶9} Counts two through five of the indictment3 were predicated upon two images

found on the card: The first is a male toddler with his hand inside of a woman's sheer

panties on her pubic region. The second is "an Asian girl who appear[s] to between the

ages of 12-14 involved in a sex act with an adult.” (Id., p. 4.) Both images were admitted

into evidence at the trial.

{¶10} The state's witnesses conceded that they were unable to identify the origin

of either image or the actual age of the girl in the second image, and could not determine

whether Appellant ever viewed the images or was aware that they were among the

10,000-plus images on the card. Captain Watson conceded that he "guessed” the age of

the girl in the second image. Further, the only averment relating to the importing element

of R.C. 2907.322(A)(6) is that "the [state's] rebuttal [during closing argument] was that it

was likely that the [images] where [sic] taken from the internet and placed on the SD

card.” (Emphasis added) (Id., p. 7.)

{¶11} Appellant moved for dismissal of the charges pursuant to Civil Rule 29 at

the conclusion of the state's case. Appellant argued that the state had failed to offer

evidence of the actual age of the girl in the second image. Appellant further argued that



3 The first count of the indictment charged Appellant with importuning, in violation of R.C.

2907.07(A), a felony of the third degree, with an offense date of October 31, 2017. Because the

importuning charge was predicated upon a separate and unrelated occurrence, the first count of

the indictment was severed from the remaining counts. Appellant pleaded guilty to the

importuning charge on February 25, 2020, after he was convicted and sentenced of the charges

at issue in this appeal.

Appellant was sentenced on the importuning conviction on March 2, 2020 to twelve months of

incarceration to run concurrent with his sentence in this case. The trial court further adjudged

Appellant to be a Tier One (I) Sexually Oriented Offender. Appellant's conviction and sentence

for importuning are not the subject of this appeal. – 5 –

Case No. 20 CA 0941

no evidence had been offered to show that Appellant brought or caused to be brought the

images into the state of Ohio. The trial court overruled the Rule 29 motion.

{¶12} The jury convicted Appellant on all of the counts. On February 7, 2020, the

trial court merged the possession convictions, with the importation convictions, then

imposed two non-life felony indefinite prison terms of five years for each importing

conviction, to be served consecutively, and a maximum term of twelve and a half years,

for an aggregate minimum term of ten years, and an aggregate maximum term of twelve

and a half years. Appellant was adjudged a Tier Two (II) Sexually Oriented Offender. This

timely appeal followed.

ASSIGNMENT OF ERROR NO. 1

APPELLANT'S CONVICTIONS WERE AGAINST THE SUFFICIENCY OF

THE EVIDENCE.

ASSIGNMENT OF ERROR NO. 2

APPELLANT'S CONVICTIONS WERE AGAINST THE MANIFEST

WEIGHT OF THE EVIDENCE.

{¶13} "Sufficiency of the evidence is a legal question dealing with adequacy.”

State v. Pepin-McCaffrey, 186 Ohio App.3d 548, 2010-Ohio-617, 929 N.E.2d 476, ¶ 49

(7th Dist.), citing State v. Thompkins, 78 Ohio St.3d 380, 386, 678 N.E.2d 541 (1997).

"Sufficiency is a term of art meaning that legal standard which is applied to determine

whether a case may go to the jury or whether evidence is legally sufficient to support the

jury verdict as a matter of law.” State v. Draper, 7th Dist. Jefferson No. 07 JE 45, 2009-

Ohio-1023, ¶ 14, citing State v. Robinson, 162 Ohio St. 486, 124 N.E.2d 148 (1955).

{¶14} To discharge the state's burden when prosecuting a criminal offense,

"'probative evidence must be offered' on 'every material element which is necessary to

constitute the crime.' ” State v. Billman, 7th Dist. Monroe Nos. 12 MO 3, 12 MO 5, 2013-

Ohio-5774, ¶ 8, citing State v. Martin, 164 Ohio St. 54, 57, 128 N.E.2d 7 (1955). In a

sufficiency review, a reviewing court does not determine "whether the state's evidence is

to be believed, but whether, if believed, the evidence against a defendant would support – 6 –

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a conviction.” State v. Rucci, 7th Dist. Mahoning No. 13 MA 34, 2015-Ohio-1882, ¶ 14,

citing State v. Merritt, 7th Dist. Jefferson No. 09 JE 26, 2011-Ohio-1468, ¶ 34. If there is

insufficient evidence to support a conviction, retrial is barred. State v. Brewer, 121 Ohio

St.3d 202, 2009-Ohio-593, 903 N.E.2d 284, ¶ 16-20.

{¶15} This is distinct from a review of the manifest weight of the evidence, which

focuses on the state's burden of persuasion. Id. A reviewing court "weighs the evidence

and all reasonable inferences, considers the credibility of witnesses and determines

whether in resolving conflicts in the evidence, the jury clearly lost its way and created

such a manifest miscarriage of justice that the conviction must be reversed and a new

trial ordered.” Thompkins at 387, quoting State v. Martin, 20 Ohio App.3d 172, 175, 484

N.E.2d 717 (1st Dist.1983). A reversal should be granted only "in the exceptional case in

which the evidence weighs heavily against the conviction.” State v. Andric, 7th. Dist.

Columbiana No. 06 CO 28, 2007-Ohio-6701, ¶ 19, citing Martin at 175.

{¶16} Appellant appeals his conviction for two counts of pandering sexually

oriented matter involving a minor (importing convictions). The statute reads, in pertinent

part:

(A) No person, with knowledge of the character of the material or

performance involved, shall do any of the following:

* * *

(6) Bring or cause to be brought into this state any material that shows

a minor or impaired person participating or engaging in sexual activity,

masturbation, or bestiality * * *.

{¶17} Appellant also appears to challenge his convictions for two counts of

pandering obscenity involving a minor (possession convictions). That statute reads, in

pertinent part:

(A) No person, with knowledge of the character of the material or

performance involved, shall do any of the following:

* * * – 7 –

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(5) Buy, procure, possess, or control any obscene material, that has a

minor or impaired person as one of its participants * * *

{¶18} A minor is a person under age 18. R.C. 2907.01(M).

AGE OF THE GIRL IN THE SECOND IMAGE

{¶19} Appellant argues that the state failed to offer any evidence to establish the

actual age of the girl in the second image, as Captain Watson admitted that his testimony

regarding her age was speculative. Appellant's challenge based on the girl's age applies

to the possession and importing charges predicated on the second image.

{¶20} R.C. 2907.321(B)(3) and 2907.322(B)(3) read, in their entirety, "[i]n a

prosecution under this section, 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 * * *.”

{¶21} 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 all of elements of R.C.

2907.322(A)(5) beyond a reasonable doubt, including that a real child is depicted, to

support a conviction for possession of child pornography under either R.C. 2907.322 or

2907.323. Id. at paragraph three of the syllabus. The Ohio Supreme Court further held

that the permissive inference of subsection (B)(3) does not render R.C. 2907.322(A)(5)

unconstitutionally overbroad by equating virtual pornography, which is protected under

the First Amendment, with pornography that involves real children, which is not. Id. at

paragraph one of the syllabus.

{¶22} The Tooley Court opined:

The permissive inference under Ohio's statute * * * simply allows what the

common law has always permitted; that is, it allows the state to prove its

case with circumstantial evidence. State v. Jenks (1991), 61 Ohio St.3d 259,

574 N.E.2d 492. * * * The permissive inference under R.C. 2907.322(B)(3)

is not an addition to the definition of "child pornography,” but is merely an

evidentiary tool. – 8 –

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* * *

R.C. 2907.322(B)(3) merely permits, and does not require, a fact-finder to

infer from circumstantial evidence the age of the person in an image. The

state still must prove all elements beyond a reasonable doubt, including that

a real child is depicted, to support a conviction for possession of child

pornography under R.C. 2907.322. In a state prosecution, the inference will

not override the actual content of the image. If the evidence establishes that

the defendant possessed an image generated without the use of a child, the

defendant should be acquitted. Despite any appearance or representation,

if no actual minor is depicted, there is no violation of R.C. 2907.322.

Id. at ¶ 33, 35.

{¶23} The image of the girl was offered by the state as circumstantial evidence of

her age. Having viewed the image, we find that there was sufficient evidence in the record

to support Appellant's possession and importation charges based on the age of the girl in

the second image. We further find that the jury could have inferred from the image that

the girl was a minor, and, therefore, Appellant has failed to show that the jury lost its way

in convicting him on the possession and importing charges based on the age of the girl in

the second image. Accordingly, we find that Appellant's assignments of error, to the

extent that they are predicated upon the age of the girl in the second image, have no

merit.

POSSESSION OR CONTROL ELEMENT

{¶24} Next, Appellant contends that the state failed to offer any evidence that he

had knowledge of the content of the images. Appellant's challenge based on his

knowledge of the content of the images applies to all four of his convictions.

{¶25} R.C. 2907.321(A) and R.C. 2907.322(A) both read, in relevant part, "[n]o

person, with knowledge of the character of the material * * *, shall do any of the following.”

Therefore, Appellant's knowledge of the content of the images is an essential element of

all of his convictions. – 9 –

Case No. 20 CA 0941

{¶26} There is no direct evidence to establish that Appellant knew that the images

contained child pornography. However, circumstantial evidence inherently possesses the

same probative value as direct evidence. State v. Treesh, 90 Ohio St.3d 460, 485, 739

N.E.2d 749 (2001). Moreover, "[a] conviction can be sustained based on circumstantial

evidence alone.” State v. Franklin, 62 Ohio St.3d 118, 124, 580 N.E.2d 1 (1991). This is

especially true with regard to the element of intent. State v. Kalna, 7th Dist. Mahoning No.

18 MA 0133, 2020-Ohio-5016, ¶ 48.

{¶27} "A person has knowledge of circumstances when he is aware such

circumstances probably exist.” R.C. 2901.22(B). "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.” Id. As the element of

intent dwells in a person's mind, it must be gathered from the surrounding facts and

circumstances. State v. Chamberlain, 7th Dist. Jefferson No. 19 JE 0007, 2020-Ohio3583, ¶ 15.

{¶28} Other than Appellant's ownership of the micro-SD card, the state offered no

other evidence to demonstrate that Appellant was aware of the content of the images.

The state argues that the images were saved on the micro-SD card, and, based upon

Appellant's admitted ownership of the card, he must have saved the images to the card.

{¶29} In State v. Duhamel, 8th Dist. Cuyahoga No. 102346, 2015-Ohio-3145, ¶

33, Duhamel argued that there was no evidence that he knew any of the internet files

referenced in the indictment contained child pornography. Duhamel predicated his

argument upon the testimony of detectives, who stated that the file sharing program used

by Duhamel did not allow him to determine the contents of a file with certainty before

downloading it, because files cannot be opened until after they have been downloaded.

The offending files were found on the defendant's computer, as well as on several

external hard drives and a USB drive.

{¶30} The Eighth District relied on circumstantial evidence to conclude that

Duhamel's convictions were supported by sufficient evidence to survive a Rule 29 motion,

as well as supported by the manifest weight of the evidence. The Eighth District

reasoned: – 10 –

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In the video of the search of Duhamel's home, Duhamel is seen explaining

to police where child pornography may be found. Duhamel also admitted he

was familiar with certain search terms that locate child pornographic files.

He explained that the search term "pthc” refers to "preteen hardcore,” and

that "raygold” refers to pornographic material involving nine-year old girls.

The video shows that Duhamel had both knowledge and experience

locating child pornography.

* * *

The jury returned guilty findings only on those counts where the file had a

descriptive title that described the file's contents and acquitted him of all

counts related to files with non-descriptive titles. The jury's findings comport

with the statutory definition of "knowledge” because the file titles indicated

they likely contained child pornographic material. They also included

specific search terms with which Duhamel was familiar.

Further, the jury found that Duhamel possessed at least 28 files of child

pornographic material. Possession of such a large number of downloaded

child pornography files cannot be a coincidence, especially since most of

the files had titles indicative of child pornography. Duhamel transferred the

files to external hard drives and saved them in separate folders that he

categorized and named according to the type of files contained therein.

Many of the same files were saved on more than one hard drive. The fact

that Duhamel categorized a large number of pornographic files into

separate folders further demonstrates his knowledge of the material.

Moreover, Duhamel confessed to police during the execution of the search

warrant that he possessed illegal files. This confession shows he had

knowledge of the contents of his files. (Tr. 425.)

Id. at 35, 37-39. – 11 –

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{¶31} In State v. Rubin, 8th Dist. Cuyahoga No. 106333, 2018-Ohio-3052, the

defendant argued 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

claimed that there was no evidence that he actually "accessed” the files because the file

sharing software automatically "shares all files downloaded once the setting is enabled or

disabled.” Id. at ¶ 25. In addition to the files on Rubin's computer, a search of his home

yielded an external hard drive and a USB drive with hundreds of child pornography

images. Id. at ¶ 14.

{¶32} In sustaining Rubin's convictions, the Eighth District opined:

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.

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 terms in his E-Mule program such as

"Nastia Mouse,” a known term for female infants to prepubescent girls in

various states of nudity, and "PTHC,” a term for "preteen hardcore.” One

would not enter these terms unknowingly. Because the many files on – 12 –

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Rubin's computer contained these and similar common child pornography

terms, the same reasoning applies.

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.

Id. at ¶ 27-29.

{¶33} Although there is no evidence that the images at issue in this appeal had

file names containing terms common to child pornography or that they were downloaded

from Appellant's computer, we find nonetheless that there was sufficient evidence in the

record from which the jury could infer Appellant's knowledge of the content of the images.

A micro-SD card is a storage device. When a micro-SD card is purchased, the device is

free of any content, as the very purpose of the device is to store data and/or images. As

a consequence, we find that the jury could infer from the nature of a micro-SD card and

Appellant's admitted ownership of the device that he had knowledge of its contents,

regardless of the number of images stored on the micro-SD card at issue. Accordingly,

we find that Appellant's assignments of error, to the extent that they are predicated upon

the state's failure to offer sufficient evidence of his knowledge of the content of the

images, have no merit. As a result, Appellant's possession convictions are affirmed.

IMPORTING ELEMENT

{¶34} Finally, Appellant argues that the state offered no evidence to establish that

he brought or caused to be brought the images into the state of Ohio. Although there is

no caselaw directly on point, it can be gleaned from the Ohio Supreme Court's decision

in State v. Maxwell, 95 Ohio St.3d 254, 2002-Ohio-2121, 767 N.E.2d 242, that the state

must prove beyond a reasonable doubt that Appellant brought or caused to be brought

the images into Ohio.

{¶35} Maxwell downloaded obscene images onto his computer. While he

conceded that he knew the images were obscene, he argued that he did not know that

he was downloading them from a computer system in another state, thereby importing

the images into Ohio. The testimony at Maxwell's trial established that he downloaded – 13 –

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the images from America Online, an internet service provider, and that all America Online

traffic passes through the company's servers in Virginia.

{¶36} The Maxwell Court found that the statute imposed strict liability on the

importing element. The Ohio Supreme Court cited State v. Wac, 68 Ohio St.2d 84, 86,

428 N.E.2d 428 (1981), for the rule of law that where the General Assembly indicates a

mental state in one part of a statute, and does not indicate any mental state in another

part of that statute, that indicates an intent to impose strict liability in that other part.

Maxwell at ¶ 27–29.

{¶37} The Maxwell Court reasoned that the knowledge element of R.C.

2907.321(A) was separated out in order to apply only to "the character of the material or

performance involved,” noting that "knowledge is a requirement only for the discrete

clause within which it resides.” Id., 95 Ohio St.3d 254, 2002-Ohio-2121, 767 N.E.2d 242,

¶ 29. Since knowledge was required in one part of the statute and not in the other, the

Maxwell Court determined that the General Assembly intended to impose strict liability in

the subsection of the statute without the knowledge requirement. Id. at ¶ 30. In other

words, the Court held that the language of R.C. 2907.321(A)(6) plainly demonstrated the

General Assembly's intent to impose strict liability with respect to the importation element.

The importing element in R.C. 2907.321(A)(6) is virtually identical to the same element in

R.C. 2907.322(A)(6) at issue in this appeal.

{¶38} Therefore, it can be ascertained from the Ohio Supreme Court's decision in

Maxwell, that although the state need not prove that Appellant had knowledge that he

imported the images into the state of Ohio, the state must, nonetheless, prove that the

images were brought or caused to be brought into the state of Ohio by Appellant.

Appellant correctly argues that the state failed to offer any evidence of the origin of the

images, and, as a result, there is insufficient evidence regarding the importing element of

R.C. 2907.322(A)(6).

{¶39} The only reference to the state's burden on the importing element in the

joint statement of facts is the state's argument in closing that the images were "probably”

downloaded from the internet. The state writes in its brief:

[A] reasonable jury can conclude from the facts and circumstances

presented that the photographs in question were brought into the state of – 14 –

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Ohio. First, the SD card and its contents were found in [Appellant's]

residence in his living area, which was clearly established to be in Carroll

County. Further, the jury heard testimony from the detectives as well as the

BCI analysis that the SD card was an electronic storage device. Because

the photos were electronically stored, a reasonable jury could infer those

photographs were electronically obtained from the internet or some other

electronic source originating in the online or electronic world. "Online child

pornography (or any other electronic image) is typically received and viewed

via email, downloading, or file sharing, or viewed on an Internet website.”

U.S. v. Kelley, 482 F.3d 1047, 1055-56 (9th Cir. 2007)(Thomas, J.

dissenting). The jury, therefore, was in a reasonable position to view the

photographs, to hear the evidence of the format they were stored in, to hear

they were in Appellant's possession, and draw any reasonable inference

from those facts and how those images came to the Appellant's possession.

(internal citations to the record omitted) (Appellee's Brf., p. 15.)

{¶40} Here, the state offered no evidence from which the jury could infer that the

images were downloaded from a server outside of the state of Ohio. Therefore, we find

that Appellant's assignments of error predicated upon the importing element have merit,

that is, we find that there is insufficient evidence in the record to establish the importing

element of Appellant's R.C. 2907.322(A)(6) convictions. Accordingly, Appellant's

importing convictions are reversed and vacated and he is discharged from further

prosecution on the importing charges.

In summary, we find that the Appellant’s assignments of error predicated

upon the age of the girl in the second image and his knowledge of the contents of the images on the micro-SD card are not well taken. There is sufficient circumstantial evidence in the record from which the jury could infer that the girl in the second image was a minor, and that Appellant knew the contents of the images on the micro-SD card based upon his ownership of the storage device. Accordingly, Appellant’s convictions for the possession crimes are affirmed.



{¶42} With respect to the importing convictions, we find that there is insufficient

evidence in the record to establish the importing element of Appellant’s R.C.

2907.322(A)(6) convictions, and, as a consequence, Appellant’s importing convictions are reversed and vacated and he is discharged from further prosecution on the importing charges. Finally, insofar as we have affirmed Appellant’s possession convictions, this matter is remanded for resentencing by the trial court on the possession convictions.