Ohio Appellate Reports
Unpublished
STATE v. TAYLOR, Unpublished Decision (12-22-2006)
2006-Ohio-6813 STATE OF OHIO, Plaintiff-Appellee, v. DANA
TAYLOR, Defendant-Appellant. No. 2005 CA 44. Court of
Appeals of Ohio, Second District. December 22, 2006.
[EDITOR’S NOTE: This case is unpublished as indicated by the
issuing court.] T.C. No. 04 CR 442.
(Criminal Appeal from Common Pleas Court)
JAMES D. BENNETT, Atty. Reg. No. 0022729, Assistant
Prosecuting Attorney, Troy, Ohio 45373, Attorney for
Plaintiff-Appellee.
JOHN C. CALIFF, Atty. Reg. No. 0071800, Troy, Ohio 45373,
Attorney for Defendant-Appellant.
OPINION
DONOVAN, J.
{1} This matter is before the court on the Notice
of Appeal of Dana Taylor, filed December 9, 2005. On
November 15, 2004, Taylor was indicted on 25 counts of
pandering obscenity involving a minor, in violation of R.C.
2907.321(A)(5), all felonies of the fourth degree. Taylor
waived his right to a jury trial, and on July 28 and 29,
2005, a bench trial was held. The court found Taylor guilty
on 21 of the 25 counts against him on August 15, 2005. On
November 14, 2005, the court sentenced Taylor to 15 months
on each count, to be served concurrently.
{2} Taylor asserts six assignments of error. At
issue in each assignment of error is State’s Exhibit 21,
which contained explicit child pornographic images
retrieved from Taylor’s computer and compact discs. The
images were categorized in the Exhibit according to each of
the 25 counts in the indictment against Taylor.
{3} Taylor’s first assignment of error is as
follows: “IT WAS ERROR TO CONVICT APPELLANT OF POSSESSING
TWENTY-ONE DIGITAL IMAGES WHERE THE STATE VIOLATED OHIO
RULES OF CRIMINAL PROCEDURE AND FAILED TO ABIDE BY HOLDINGS
OF THE OHIO SUPREME COURT ON THOSE ISSUES WHEN THE COMPACT
DISC CONTAINING TWENTY-FIVE PHOTOGRAPHS OF PRINTOUTS OF
ACTUAL DIGITAL IMAGES WAS NOT PRODUCED TO APPELLANT UNTIL
JULY 22, 2005, JUST SIX DAYS BEFORE TRIAL AND SAID
PHOTOGRAPHS WERE DIFFERENT THAN THOSE USED IN ITS EXHIBIT
21.”
{4} Crim.R.16(B)(1)(c) provides, “Upon motion of
the defendant the court shall order the prosecuting
attorney to permit the defendant to inspect and copy or
photograph books, papers, documents, photographs, tangible
objects, * * * available to or within the possession,
custody or control of the state, and which are material to
the preparation of his defense, or are intended for use by
the prosecuting attorney as evidence at the trial, or were
obtained from or belong to the defendant.” “In the event of
a violation of Crim.R. 16, a trial court is required to
consider the circumstances of the violation, and then
impose the least severe sanction consistent with the
purposes of the rule. State v. Parker (1990), 53 Ohio St.3d
82, 558 N.E.2d 1164. In considering the sanction necessary
to satisfy the purposes of Crim.R. 16, a court must
consider whether the failure to provide discovery was
willful, the extent to which foreknowledge of the material
in question would have benefitted the defendant in the
preparation of the case, and the extent of the prejudice
suffered as a result of admission of the evidence. State v.
Heinish (1990), 50 Ohio St.3d 231, 553 N.E.2d 1026.”
Columbus v. Thevenin, Franklin App. No. 05AP-879,
2006-Ohio-5747.
{5} Taylor argues that in the course of discovery
the State produced two compact discs of pictures that
differed from the images represented in Exhibit 21.
Taylor’s expert, Dean Boland, an attorney and technology
consultant, reviewed the images in Exhibit 21, and the
following exchange occurred:
{6} “Q. Next I want to ask you about picture 12?
{7} “A. Oh! There’s one other point I omitted and
that is —
{8} “Q. On which picture?
{9} “A. On number 12.
{10} “Q. Okay.
{11} “A. If the file path that’s printed here is
actually the file path and file name of this image this
file couldn’t possibly have been opened even if the person
knew it existed and clicked on it because the file has a
.txt extension which would have caused the Windows
operating system to attempt to open it in a text * * *
program and when you try to open an image in a text program
it fails. So it’s not possible this image was not opened no
matter what because the person clicking on this would have
gotten an error on their computer * * *.
{12} “A. And you’re saying that the State’s copy
of picture of 12 has the file extension txt on it?
{13} “A. It does. * * *
{14} “Q. But I appreciate you pointing it out
because our copy of that picture doesn’t have that txt
extension on it.”
{15} Near the end of the trial, Taylor made the
following objection:
{16} “Mr. Califf: Your honor, produced to us in
this case are these pictures. Admitted as evidence in this
Exhibit 21 are also pictures.
{17} * * *
{18} “Mr. Califf: They’re not the same. The
pictures in here do not include the .txt files. The
pictures in here, State’s 21, do.
{19} * * *
{20} “Mr. Califf: The pictures supplied to us on
the disc also have incomplete file names. * * * I have [a]
reasonably good feeling that what we have here is pretty
good proof of a discovery violation and we’d move to
exclude all this under 16 * * * .
{21} “The Court: I’m just wondering how are you
prejudiced by the exclusion of the .txt language on there?
{22} * * *
{23} “The Court: Cause we did have testimony on
that.
{24} * * *
{25} “The Court: * * * I still fail to see where
the defense has been prejudiced by just discovering that
three of the or four of the, there are four pictures,
number 12, 13, 14 and 16, have the txt denomination on them
and that was very well explained by Mr. Boland as to the
effect of that which I wrote down. So the point has been
made. I don’t know how it could have been made any better
if he had that txt indication of those pictures a month
beforehand or just a[t] trial. Mr. Boland was very sharp in
picking that up and explained it to all of us and I fail to
see the prejudice. I know what your argument is but you
have to show prejudice as well at this level and there’s
just no prejudice.”
{26} Nothing in the record indicates that the
State’s failure to provide the complete file names was
deliberate; the State learned of the difference between
Exhibit 21 and the images it provided the defense from Dean
Boland at trial. Foreknowledge of the difference would not
have benefitted Taylor in the preparation of his case; the
trial court found Taylor not guilty of counts 12, 13, 14
and 16, which were based on the four images discussed
above. In its Addendum, the trial court noted that if the
four images could not be accessed, “and the Court is unsure
if that includes when the exhibit was first viewed, it leads
the Court to find Counts 12, 13, 14 and 16 have not been
established beyond a reasonable doubt. Thus, even if
Defendant’s claims of discovery violation are accurate, no
prejudice has occurred to the Defendant.” We agree with the
trial court that Taylor was not prejudiced by the State’s
failure to provide the complete file names for the images.
Taylor’s first assignment of error is overruled.
{27} Taylor’s second assignment of error is as
follows: “IT WAS ERROR TO CONVICT APPELLANT OF POSSESSING
TWENTY-ONE DIGITAL IMAGES WHEN PHOTOGRAPHS OF PRINTOUTS OF
ACTUAL DIGITAL IMAGES WERE IMPROPERLY ADMITTED INTO
EVIDENCE WITHOUT PROPER AUTHENTICATION IN ACCORDANCE WITH
THE RULES OF EVIDENCE AND ESTABLISHED OHIO CASE LAW ”
{28} “The requirement of authentication or
identification as a condition precedent to admissibility is
satisfied by evidence sufficient to support a finding that
the matter in question is what its proponent claims.”
Evid.R. 901(A). “An `original’ of a writing or recording is
the writing or recording itself or any counterpart intended
to have the same effect by a person executing or issuing
it. An `original’ of a photograph includes the negative or
any print therefrom. If data are stored in a computer or
similar device, any printout or other output readable by
sight, shown to reflect the data accurately, is an
`original.'” Evid.R. 1001(3). “A `duplicate’ is a
counterpart produced by the same impression as the
original, or from the same matrix, or by means of
photography, * * * or by other equivalent techniques which
accurately reproduce the original.” Evid.R. 1001(1)(4). “A
duplicate is admissible to the same extent as an original
unless (1) a genuine question is raised as to the
authenticity of the original or (2) in the circumstances it
would be unfair to admit the duplicate in lieu of the
original.” Evid. R. 1003.
{29} The State claimed that the images in Exhibit
21 were “mirror images” of the pictures appearing on
Taylor’s computer and compact discs. Jim Taylor, a
detective with the city of Piqua for thirteen years, and
Ervin Burnham, a database administrator and computer
forensic analyst for the Miami Valley Regional Crime
Laboratory in the Montgomery County Coroner’s Office,
testified for the State regarding the images in Exhibit 21.
Detective Taylor identified the items that were seized from
Taylor’s home pursuant to a search warrant, including his
computer, hard drives, and discs. Burnham described the
process he employed to view all of the images on the
computer and other media, estimating that he viewed “over a
thousand images depicting child pornography total.” “In
this instance we did a preview of the media to start with
and based on that preview a report was generated and then a
more thorough examination of all the media was conducted
and a final report was completed.” Burnham described his
use of “a hardware write protection device” that keeps the
information in all media from being erased or modified or
altered. Burnham described how he bookmarked some color
images and then copied them to give to Detective Taylor.
Burnham identified the 25 images in State’s Exhibit 21 as
images bookmarked and copied from Taylor’s computer and
related media. Detective Taylor described how he selected
and photographed the same 25 images from the pictures
provided by Burnham: “When all 25 were photographed those
were downloaded and then printed out * * * .” Detective
Taylor also downloaded the same images onto two compact
discs.
{30} When admitting Exhibit 21, the trial court,
over Taylor’s objection, determined the images “have been
authenticated for purposes of admissibility by the fact
that they were seized in the affidavit from the Defendant’s
house and those are, that’s the same computer that was
seized from which the images were taken.” The trial court
correctly noted in its later Entry that the “authentication
inquiry is not what the author (or creator) claimed it to
be, but whether the document is what its proponent at trial
claims it to be.” See Evid. R. 901(A). The State adduced
sufficient testimony from Burnham and Detective Taylor to
authenticate or identify the images comprising Exhibit 21 as
duplicates of the images appearing on Taylor’s computer and
compact discs. In other words, the trial court correctly
admitted Exhibit 21 and concluded, “[i]t then becomes a
decision for the trier of fact to assign weight, if any, to
the exhibit.” See City of Urbana ex rel. Newlin v. Downing
(Nov. 16, 1987), Champaign App. No. 87 CA 03. Taylor’s
second assignment of error is overruled.
{31} Taylor’s third assignment of error is as
follows:
{32} “IT WAS ERROR TO CONVICT APPELLANT OF
POSSESSING TWENTY-ONE DIGITAL IMAGES WHEN PHOTOGRAPHS OF
PRINTOUTS OF ACTUAL DIGITAL IMAGES WERE ADMITTED INTO
EVIDENCE BY WHAT APPEARS TO BE AN ABROGATION OF THE RULES
OF EVIDENCE BECAUSE OF APPELLANT’S FIFTH AMENDMENT RIGHT TO
NOT TESTIFY. SUCH A DOUBLE STANDARD FOR INVOKING RIGHTS
PROTECTED BY THE UNITED STATES CONSTITUTION IS
IMPERMISSIBLE.”
{33} Taylor takes issue with the following
statement by the trial court: “As to the Defendant’s
arguments that [the images in Exhibit 21] haven’t been
authenticated under the circumstances since the property
was owned by the Defendant and the State is precluded from
calling the Defendant to the stand obviously since he has a
right not to testify against himself that rule is abrogated
by the fact that they’ve shown a chain of evidence that the
computer came from his house and then the pictures were
taken off the computer which came from his house * * * .”
According to Taylor the trial court’s statement suggests
“there are two standards for authenticating pictures. One
for when the Defendant does not invoke his Constitutional
Rights and another, much more like a chain of custody
analysis, when the Defendant does invoke his Constitutional
Rights.”
{34} For the reasons discussed under the first
assignment of error, Exhibit 21 was properly authenticated
and admitted, and Taylor’s third assignment of error is
overruled.
{35} Taylor’s fourth assignment of error is as
follows:
{36} “IT WAS ERROR TO CONVICT APPELLANT OF
POSSESSING TWENTY-ONE DIGITAL IMAGES BECAUSE OF APPELLEE’S
FAILURE TO PROVE BEYOND A REASONABLE DOUBT THAT APPELLANT
KNOWINGLY POSSESSED THESE DIGITAL IMAGES. THE CONVICTION
SHOULD BE SET ASIDE FOR ANY OF THE FOLLOWING THREE REASONS:
{37} “1. THE STATE FAILED TO PROVE BEYOND A
REASONABLE DOUBT THAT APPELLANT KNEW ANY OF THESE
TWENTY-FIVE DIGITAL IMAGES RESIDED IN THE MANY VARIOUS
STORAGE MEDIA SEIZED FROM HIS HOME.
{38} “2. THE STATE FAILED TO PROVE BEYOND A
REASONABLE DOUBT THAT APPELLANT OPENED OR VIEWED ANY OF
THESE TWENTY-FIVE DIGITAL IMAGES.
{39} “3. THAT TESTIMONY OF SUBSTANTIAL ACCESS TO
APPELLANT’S COMPUTER BY OTHERS, EASE OF INTERCHANGING
REMOVABLE DRIVES FROM APPELLANT’S COMPUTER AND ITS LACK OF
PASSWORD PROTECTION MAKE IT IMPOSSIBLE FOR THE STATE TO
PROVE BEYOND A REASONABLE DOUBT THAT THIS APPELLANT
KNOWINGLY POSSESSED THESE DIGITAL IMAGES.”
{40} “No person, with knowledge of the character
of the material or performance involved, shall * * * (5)
Buy, procure, possess, or control any obscene material,
that has a minor as one of its participants.” R.C.
2907.321(A)(5).
{41} “In reviewing a claim of insufficient
evidence, `[t]he relevant inquiry is whether, after
reviewing 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.” State v. McKnight, 107 Ohio St.3d 101,
112, 837 N.E.2d 315, 2005-Ohio-6046 (Internal citations
omitted).
{42} It was established at trial, as discussed
above, that Taylor owned the computer containing the
pornography. Burnham testified that he performed a keyword
search on the computer for the term “Lolita,” ” which is a
common term used to depict children engaged in sexual
activity.” According to Burnham, he “got two hundred and
twenty-one thousand two hundred and forty-three hits,”
which indicates “the individual is visiting these types of
websites that contain Lolita type images.” The trial court
found that “the 220,000 plus hits on the `Lolita’ word
search on the hard drives of the Defendant’s computer
dispels any argument the sites were visited accidentally or
were the result of unintended pop-ups.”
{43} Angel Taylor, Taylor’s fourteen year old
daughter, testified that her father had pornography “of
adults and kids” on his computer and “he had it up like all
the time.” Angel said the children she observed were “[t]he
age maybe 10 to 14, 15” She also stated that Taylor had a
website called “Sexual Twisted Minds.”
{44} Jordan Taylor, Taylor’s eight year old son,
testified that he saw “naked people” on Taylor’s computer,
and that “a few” of them were kids. According to Jordan,
“[t]here’ s just little tiny blocks of them everywhere and
it looked like there was about a hundred.”
{45} In its Addendum to its General Finding After
Trial to the Court, the trial court stated, “The Court
finds the testimony of the Defendant’s children, that they
saw either naked people (including a few kids) on their
father’s computer when he was in the room or saw
pornographic picture[s] of kids on his computer, ages 10 to
15, credible.”
{46} Burnham testified as follows regarding the
existence of temporary internet files he discovered on
Taylor’s computer: “Based on the location of these, these
temporary internet files there was a problem. * * * [I]n
Windows 98 one would expect to find temporary internet
files in a directory called Windows Temporary Internet
files Content IE5. In this instance the files were actually
located in a [separate] file. * * * That’s a problem in
that that’s not the normal location where these files are
located at and it means that someone took a conscious
effort to move these files to these other locations so they
could be viewed at a later time. Temporary internet files
are like any other file on your computer. If you know where
they’re located at you can view the contents of them. * * *
When the files are moved it means the person wants to save
these files for some reason to look at them at a later
point in time, * * * or other reasons known only to that
individual. * * * It would take some type of a conscious
effort to do that though cause we’re physically moving
entire directories.”
{47} We agree with the State that Taylor’s
argument that “the children could have possibly done that
or some visitor to the house could have been on that
website over 220,000 times, is farfetched and simply
unbelievable.” Having reviewed the evidence in a light most
favorable to the State, we conclude that any rational trier
of fact could have found the “with knowledge” element of
the pandering charges against Taylor proven beyond a
reasonable doubt. Taylor’s fourth assignment of error is
overruled.
{48} We will address Taylor’s fifth and sixth
assignments of error together. They are as follows:
{49} “IT WAS ERROR TO CONVICT APPELLANT OF
POSSESSING TWENTY-ONE DIGITAL IMAGES WHEN THE UNITED STATES
SUPREME COURT HAS HELD THAT VIRTUAL CHILD PORNOGRAPHY IS
PROTECTED SPEECH UNDER THE FIRST AMENDMENT TO THE UNTIED
STATES CONSTITUTION.” And,
{50} “IT WAS ERROR TO CONVICT APPELLANT OF
POSSESSING TWENTY-ONE DIGITAL IMAGES WHEN APPELLEE FAILED
TO PROVE BEYOND A REASONABLE DOUBT WITH CREDIBLE TESTIMONY
BY ANY WITNESS WHO EXAMINED THE ELECTRONIC DIGITAL IMAGES
THAT THE IMAGES DEPICTED ACTUAL MINORS, AS OPPOSED TO
VIRTUAL MINORS.”
{51} Taylor relies on Aschcroft v. The Free Speech
Coalition (2002), 535 U.S. 255-56, a declaratory judgment
action in which suppliers of materials portraying children
attacked the constitutionality of the Child Pornography
Prevention Act of 1996. The court therein held that the
provisions of the Act that criminalized possession and/or
distribution of virtual child pornography, meaning
computer-generated images of minors engaged in sexual
activity, were overly broad and unconstitutional. Id. It
was significant to the court that the Act generally
prohibited speech that may not be obscene. Id. Obscene
material is that which, “taken as a whole, appeals to the
prurient interest, is patently offensive in light of
community standards, and lacks serious literary, artistic,
political, or scientific value.” Id., citing Miller v.
California, 413 U.S. 15, 93 S.Ct. 2607, 37 L.Ed. 419
(1973). The Act “proscribed] the visual depiction of an idea
— that of teenagers engaging in sexual activity
— that is a fact of modern society and has been a
theme in art and literature throughout the ages.” Id.
{52} We discussed the rationale in Aschroft in a
recent decision: “First, because a virtual depiction does
not involve an actual child in its production, virtual
material of that kind `records no crime and creates no
victims by it[s] production.’ Id., at 236. Second, any
causal link to harm suffered by real children in the
production of virtual child pornography is contingent and
indirect, because it does not necessarily follow from the
speech involved but instead depends on some unquantifiable
potential for subsequent criminal acts. Id.” State v.
Gillingham, Montgomery App. No. 20671, 2006-Ohio-5758
(affirming conviction and holding that Ashcroft did not
apply to seven counts of pandering obscenity involving a
minor).
{53} “The question whether images are virtual or
real is for the trier of fact to determine. (Internal
citations omitted). When the trier of fact is capable of
reviewing the evidence to determine whether the prosecution
met its burden to show that the images depict real
children, the state is not required to present any
additional evidence or expert testimony to meet the burden
of proof to show that the images downloaded on a computer
depict real children. * * * A defendant’s claim that the
images may have been virtual and not real is purely
speculative, and the State is not then required to offer
evidence to rebut it.” Id.
{54} The trial court, in its Addendum, noted that
Ashcrofi involved virtual child pornography. R.C.
2907.321(A)(5), however, “involve[s] the use of real
children and it is up to the trier of fact to determine by
inference and/or direct evidence if the person in the
material is in fact a minor, through the material’s title,
text, visual representation or otherwise.” After reviewing
the evidence, the court determined that the pictures in
Exhibit 21 “depict real individuals under the age of 18 and
the pictures are obscene.” Accordingly, Ashcroft does not
bar Taylor’s convictions, and the findings the trial court
made are sufficient to support guilty findings. Taylor’s
fifth and sixth assignments of error are overruled. The
judgment of the trial court is affirmed.
BROGAN, J. and FAIN, J., concur.