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State v. Osborne

Court of Appeals of Ohio, Ninth District, Lorain

March 6, 2017

STATE OF OHIO Appellee
v.
JAMES OSBORNE Appellant

         APPEAL FROM JUDGMENT ENTERED IN THE COURT OF COMMON PLEAS COUNTY OF LORAIN, OHIO CASE No. 07CR074897

          BRIAN J. DARLING, Attorney at Law, for Appellant.

          DENNIS P. WILL, Prosecuting Attorney, and NATASHA RUIZ GUERRIERI, Assistant Prosecuting Attorney, for Appellee.

          DECISION AND JOURNAL ENTRY

          DONNA J. CARR, Presiding Judge.

         {¶1} Appellant James Osborne appeals the judgment of the Lorain County Court of Common Pleas. This Court affirms.

         I.

         {¶2} In 2007, Osborne was indicted on one count of pandering obscenity involving a minor and one count of pandering sexually oriented matter involving a minor. In 2010, Osborne pleaded guilty to the indictment. The trial court concluded the two offenses were allied and the State elected to have Osborne sentenced for pandering obscenity involving a minor. Osborne was sentenced in 2011 to five years of community control, the provisions of which included several restrictions and requirements, including restrictions related to computer use and interactions with minors. Osborne was additionally classified as a Tier II sex offender. The sentencing entry provided that if Osborne violated the terms of his sentence, he would be subject to an eight year prison sentence.

          {¶3} Osborne initially registered his mother's address as his place of residence. Shortly thereafter, he began a relationship with Heather Koon and sought to reside with her. Osborne's probation officer, David Gaul, informed Osborne that he should check with him or the sheriffs office before signing a lease or moving to ensure that the residence was not too close to a school or other prohibited location. In October 2011, Osborne signed a lease with Ms. Koon on Blaine Street. Mr. Gaul informed Osborne that he could not stay there due to its proximity to a school; however, Osborne could visit there. Mr. Gaul had been to Osborne's mother's house on several occasions; however, Osborne was never there at the time and his bedroom always looked very tidy and not "very lived in."

         {¶4} In 2013, Mr. Gaul and the sheriffs department received anonymous calls indicating that Osborne was living at the prohibited address on Blaine Street with Ms. Koon. In September 2013, Mr. Gaul went out to the Blaine Street address with Deputy Deborah Hurlburt with the Lorain County Sheriffs Office to try to determine where Osborne was residing. When they arrived, Mr. Gaul noticed through a window that Osborne appeared to be using a laptop. Upon entering and speaking with Osborne, Osborne admitted that he was staying at the residence three to four nights a week and that his mail was delivered there. Mr. Gaul discovered that, contrary to his restrictions, Osborne had been using the internet and had an iPhone which also had internet access. Deputy Hurlburt examined the phone and found compromising photos of young girls. Osborne was thereafter arrested for violating community control. His phone and the laptop he was using were confiscated. Following an investigation, additional evidence surfaced that implicated Osborne in the rape of two young girls.

         {¶5} Osborne waived a probable cause hearing and admitted probable cause existed for the violations. Following a merits hearing in December 2014, the trial court found Osborne violated community control and sentenced him to eight years in prison. Osborne has appealed, raising two assignments of error for our review, which we will address together.

         II.

         ASSIGNMENT OF ERROR I

         THE TRIAL COURT DENIED APPELLANT DUE PROCESS OF LAW BY FAILING TO PROVIDE APPELLANT WITH WRITTEN NOTICE OF THE CLAIMED VIOLATIONS OF PROBATION.

         ASSIGNMENT ...


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