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State v. Waters

Court of Appeals of Ohio, Eighth District, Cuyahoga

February 23, 2017


         Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-15-596253-B

          ATTORNEYS FOR APPELLANT Robert Tobik Cuyahoga County Public Defender, Paul Kuzmins Erika B. Cunliffe Assistant Cuyahoga County Public Defenders

          ATTORNEYS FOR APPELLEE Michael C. O'Malley Cuyahoga County Prosecutor, Margaret Kane Kerry A. Sowul Holly Welsh Assistant County Prosecutors The Justice

          BEFORE: Blackmon, J., E.T. Gallagher, P.J., and Laster Mays, J.



         {¶1} William Waters, III ("Waters") appeals his convictions for various sex offenses and accompanying sentence of life in prison without the possibility of parole. Waters assigns 13 errors for our review.[1]

         {¶2} Having reviewed the record and pertinent law, we affirm. The apposite facts follow.

         {¶3} In July 2014, 15-year-old K.L. told her mother ("Mother") that Waters, who, at the time, was Mother's husband and K.L.'s stepfather, had been sexually abusing her for several years. Mother and K.L. filed a report with the Westlake Police Department. After interviewing K.L. and her younger sisters, H.L. and E.L., the police identified other alleged victims. The police searched Waters's Westlake home and discovered that he had fled the state, taking with him several electronic data storage devices. The police seized multiple cell phones, electronic data storage devices, and a personal computer that Waters left behind.

         {¶4} Waters was arrested on October 2, 2014, in Arkansas. After searching Waters's hotel room[2] and van, authorities seized numerous additional electronic devices with videos and images of child pornography. Additionally, the police recovered flash drives from Waters's pockets, which also contained child pornography, including images of Waters and K.L. engaging in unlawful sexual conduct.

         {¶5} Waters was indicted on October 14, 2014, in Cuyahoga C.P. No. CR-14-588664 and on February 2, 2015, in Cuyahoga C.P. CR-14-591898. On June 4, 2015, Waters was charged, in the case at issue, with 68 felony counts including rape, kidnapping, gross sexual imposition, and child pornography involving victims K.L., H.L., E.L., S.S., and K.D. The charges in all three cases stemmed from developments in the investigation of K.L.'s accusations of Waters.

         {¶6} On September 9, 2015, the court dismissed cases CR-14-588664 and CR-14-591898. The case at issue went to trial, and on November 17, 2015, a jury found Waters guilty of 37 counts involving three victims. Waters was also convicted of sexual motivation and sexually violent predator specifications. On November 25, 2015, the court sentenced Waters to life in prison without the possibility of parole.[3] Waters now appeals his convictions and sentence.

         Motion to Suppress Evidence

         {¶7} In Waters's first, second, and third assigned errors, he argues that the court erred by denying his motion to suppress electronic evidence.

Appellate review of a motion to suppress presents a mixed question of law and fact. When considering a motion to suppress, the trial court assumes the role of trier of fact and is therefore in the best position to resolve factual questions and evaluate the credibility of witnesses. Consequently, an appellate court must accept the trial court's findings of fact if they are supported by competent, credible evidence. Accepting these facts as true, the appellate court must then independently determine, without deference to the conclusion of the trial court, whether the facts satisfy the applicable legal standard.

(Citations omitted.) State v. Burnside, 100 Ohio St.3d 152, 2003-Ohio-5372, 797 N.E.2d 71, ¶ 8.

         {¶8} In the case at hand, six search warrants were issued between July and October 2014, regarding: Waters's Westlake home; the electronic devices recovered from his Westlake home; Waters's motel room in Oklahoma; the van Waters was driving in Oklahoma and/or Arkansas; the electronic devices recovered from his motel room and van; and the electronic data storage devices recovered from Waters's pockets when he was arrested.

         {¶9} Waters argues in his first and third assigned errors that "the underlying search warrant affidavits failed to provide any facts that supported a finding of probable cause to believe that Waters had transferred the photo of K.L. from his LG G-Z cell phone to a computer or data storage device * * *." Waters does not challenge the allegation that he used a cell phone to photograph himself engaging in unlawful sexual conduct with K.L. Rather, he argues that "probable cause did not exist to seize any device other than the LG G-Z cell phone that was used to take the photo."

         {¶10} As support for his argument, Waters cites State v. Castagnola, 145 Ohio St.3d 1, 2015-Ohio-1565, 46 N.E.3d 638, ¶ 106, which holds that:

the particularity requirement of the Fourth Amendment applies to the search of a computer and requires a search warrant to particularly describe the items believed to be contained on the computer with as much specificity as the affiant's knowledge and the circumstances of the case allow and that the search be conducted in a manner that restricts the search for the items identified.

         {¶11} The facts concerning the search warrant in Castagnola are markedly different than the facts concerning the search warrant in the case at hand. In Castagnola, a witness "received a series of text messages * * * from [the defendant] bragging about having damaged [the victim's] vehicles." The defendant also told the witness that the defendant had to "look up" the victim's address on court records. Id. at ¶ 3. The police detective inferred that the defendant "looked up" the victim's address online. Id. at ¶ 21-25. The detective testified that this inference, coupled with the defendant's "blatant" text messages, led him to believe that there are "probably other items in the house that would be of evidentiary value." Id. at ¶ 25.

         {¶12} Based on this information, a magistrate issued a search warrant for "[r]ecords and documents either stored on computers * * * or any other electronic recording device * * *" relating to the vandalism and criminal damaging offenses with which the defendant was charged. Id. at ¶ 28. The Ninth District Court of Appeals upheld the warrant, finding that "[a]s a matter of common sense, the issuing judge could have determined that [the defendant] used a computer to conduct the foregoing online searches such that the computer would contain evidence of his criminal activities." State v. Castagnola, 9th Dist. Summit Nos. 26185, 26186, ¶ 13.

         {¶13} The Ohio Supreme Court reversed and found that the search warrant violated the defendant's Fourth Amendment rights.

We * * * reject the trial court's supposition that statements sent by text message admitting criminal activity create substantial basis for concluding that evidence of a crime will be found on a computer. Similarly, we are not inclined to leap to the conclusion that the information stored on a phone will necessarily be backed up on a computer. Although we are in the computer age, records * * * still exist in paper form and are available to the public in * * * offices around the state.

State v. Castagnola, 145 Ohio St.3d 1, 2015-Ohio-1565, 46 N.E.2d 638, ¶ 63.

         {¶14} Furthermore, the recorded conversation between the witness and the defendant revealed that the defendant never used the term "online" when talking about looking up the victim's address. The court held that the detective's use of the term "online" in the affidavit was an unwarranted inference, and "there was no probable cause to believe that computer in [the defendant's] residence was used in furtherance of the alleged crimes." Id. at ¶ 61.

         {¶15} Search warrants must particularize the items to be searched for to the best of the authorities' knowledge at the time the warrant is issued. Id. at ¶ 88. "[T]he Fourth Amendment does not require a search warrant to specify restrictive search protocols, but we also recognize that the Fourth Amendment does prohibit a 'sweeping comprehensive search of a computer's hard drive.'" Id. "The logical balance of these principles leads to the conclusion that officers must describe what they believe will be found on a computer with as much specificity as possible under the circumstances." Id.

         {¶16} In Castagnola, the authorities used text messages and an unsubstantiated inference of an online inquiry as the basis to search for incriminating evidence of vandalism on the defendant's computer. The Ohio Supreme Court found that this violated the defendant's Fourth Amendment rights. Id. at 107-108. In the case at hand, the authorities used allegations of child pornography as the basis to search for incriminating evidence of child pornography on the defendant's electronic storage devices. This search is neither overbroad nor insufficiently particularized. See, e.g., U.S. v. Deppish, 994 F.Supp.2d 1211, 1220 (Kan.2014) ("A temporal limitation was not reasonable because child pornography collectors tend to hoard their pictures for long periods of time.")

         {¶17} Upon review, we find that the search-warrant affidavit for Waters's Westlake home contains sufficient information "that there is a fair probability that evidence of a crime will be found in a particular place." Id. at ¶ 35. Specifically, the police believed to find child pornography on Waters's electronic devices. According to Westlake Police Detective Roseanna McCoy, K.L. stated that "since age of eight, [Waters] had been sexually abusing her by showing her pornographic images, " and "Waters took a picture of his penis inserted in [K.L.'s] vagina. Waters used his cell phone to take the picture."

         {¶18} Furthermore, the affidavit stated that "cell phones are readily capable of transferring images to computer devices and other electronic storage media * * * ." Mother told McCoy that "Waters is known to keep various S.D. cards in random jacket pockets throughout the house." Mother and K.L. told McCoy that Waters was "computer savvy, " and he used a desktop computer at the Westlake house. The affidavit specified the property to be searched to include the following: "cellular phones, S.D. cards, desktop computer system, [and] any device capable of storing video files, picture files, [and] images

         {¶19} When the police executed this search warrant on July 19, 2014, they learned that Waters had left the state of Ohio. The police seized ten cellular phones, a computer tower and hard drive, approximately one dozen thumb or USB drives, and several other electronic storage devices, such as DVD-Rs, SIM cards, and S.D. cards from Waters's house. Police also determined that computers and other electronic devices were missing from Waters's Westlake home.

         {¶20} Detective McCoy testified at the suppression hearing that it was unclear to whom the multiple cell phones found in the house belonged. "They were inside the home in a drawer together. And because * * * these images can be transferred, I was looking for the photographs and the different images that [K.L.] had reported to me about [Waters] taking photographs of her while he was having sex with her." Detective McCoy also testified that K.L. told her "about other instances where [Waters] photographed her or took videos of her having sex." Although Waters focuses on one photograph that he took on a cell phone, the affidavit contains information that Waters had been showing K.L. pornographic images for years.

         {¶21} Asked what the police were searching for based on the warrants issued, Detective McCoy testified as follows:

Any type of child pornography videos of any sexual assaults involving any of the victims, because after my investigation there were now four victims.Any type of text messages on Kick or chats indicating [Waters] talking to any of the non family member victims. Any text messages. Pretty much anything that could be stored in those devices.

         {¶22} Upon review of this evidence, we find that there was probable cause to believe that evidence of a crime would be found on the electronic devices in Waters's home.

         {¶23} Waters further argues in his second assigned error that "because the probable cause to search for the photo of K.L. was two years old and stale, " the search of his computer and electronic data storage devices violated the Fourth Amendment. A review of the search-warrant affidavits shows that it is unclear when Waters took the picture of his penis inserted in K.L.'s vagina. K.L. recalled that it took place in the Westlake residence and claimed that Waters raped her vaginally and anally "two to three times a week at the Westlake home over the past two years." Nonetheless, "[t]he question of staleness is not measured solely by counting the days between the events listed in the affidavit and the application for the warrant." State v. Willard, 8th Dist. Cuyahoga No. 99184, 2013-Ohio-3001, ¶ 16.

         {¶24} In determining whether information in a search-warrant affidavit is "stale, " courts look to the following factors: "the character of the crime; the criminal; the thing to be seized; * * * whether it is perishable; the place to be searched; and whether the affidavit relates to a single isolated incident or ongoing criminal activity." Id. As it relates to cases involving child pornography, the staleness analysis is "sensitive to technology and to the particular criminal activity at issue." Id. at ¶ 18. Ohio courts, as well as courts across the country, have held that "child pornography collectors tend to retain their collections in secure, private, but available places for extended periods of time [and] possessors of child pornography often obtain and retain images of child pornography on their computers." State v. Ingold, 10th Dist. Franklin No. 07AP-648, 2008-Ohio-2303, ¶ 25 (citing U.S. v. Riccardi, 405 F.3d 852 (C.A.10, 2005)). See also U.S. v. Lamb, 945 F.Supp. 441, 460 (N.D.N.Y.1996) ("The observation that images of child pornography are likely to be hoarded by persons interested in those materials in the privacy of their homes is supported by common sense and the cases").

         {¶25} In the case at hand, the allegations are of ongoing criminal activity including child pornography and rape. Waters fled the jurisdiction upon learning of the claims against him and took several personal electronic data storage devices. The initial search warrant was for Waters's home, where numerous electronic devices were seized. The police got a second search warrant on August 1, 2014, authorizing the search of these electronic devices for communication between Waters and the alleged victims, as well as photographs that may be used as evidence in the case. Upon review, we cannot say that K.L.'s allegation that Waters took illegal pictures of her was stale.

         {¶26} We find that the search warrants in the case at hand did not violate Waters's Fourth Amendment rights, and his first three assigned errors are overruled.

         Speedy ...

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