Court of Appeals of Ohio, Third District, Auglaize
from Auglaize County Common Pleas Court Criminal Division
Trial Court No. 2014-CR-75
Timothy Scott Workman, Appellant.
Andrew Augsburger for Appellee.
Although originally placed on our accelerated calendar, we
have elected pursuant to Loc.R. 12(5) to issue a full opinion
in lieu of a summary judgment entry.
Defendant-appellant Timothy S. Workman ("Workman")
was convicted of thirty-nine counts of illegal use of a minor
in nudity-oriented material in violation of R.C.
2907.323(A)(1), thirty-nine counts of illegal use of a minor
in nudity-oriented material in violation of R.C.
2907.323(A)(3), and one count of tampering with evidence in
violation of R.C. 2921.12(A)(1). In this appeal, he
challenges the decision of the Court of Common Pleas of
Auglaize County for (1) dismissing his successive petition
for postconviction relief and (2) failing to hold an
evidentiary hearing in response to his successive petition
for postconviction relief. For the reasons set forth below,
the judgment of the trial court is affirmed.
and Procedural History
Two female minors accused Workman of taking nude photographs
of them in a hotel room in Wapakoneta, Ohio, during the
months of March and July of 2013. Tr. 382. A police detective
set up a sting operation by posing as one of the minor girls
and extending an offer to have another photo shoot at an area
hotel. Doc. 103. After Workman registered at the hotel, the
police apprehended him. Id. At the time of his
arrest, Workman's cell phone was seized from his vehicle.
Tr. 421. Further investigation of Workman's vehicle
yielded two secure digital memory cards. Tr. 460-461. These
memory cards contained nude pictures of the two minors who
had accused Workman. Tr. 479-480.
Both of the female minors who accused Workman testified at
his trial and identified Workman as the person who took the
nude pictures of them. Tr. 310, 342, 346, 375. Both girls
knew Workman independently of the photo shoots that he had
hosted. Tr. 199-200, 298-299. One of these girls had known
Workman for four to five years before their interactions in
the photo shoots and, thus, for some time before she had
identified him at trial. Tr. 298-299. The other girl had
known Workman for a shorter period of time through his work
at a local gym. Tr. 199-200. Further, the girls also
identified the photographs he took of them and text messages
about the photo shoots. Tr. 212, 225-228, 231-240, 308, 310,
318-336, 344-345. The photographs from the memory card were
admitted into evidence as were copies of the text messages
that were used to schedule the nude photo shoots in 2013. Ex.
On October 3, 2014, Workman was found guilty of thirty-nine
counts of illegal use of a minor in nudity-oriented material
in violation of R.C. 2907.323(A)(1), thirty-nine counts of
illegal use of a minor in nudity-oriented material in
violation of R.C. 2907.323(A)(3), and one count of tampering
with evidence in violation of R.C. 2921.12(A)(1). Docs.
202-280. On October 27, 2014, Workman submitted a motion for
a new trial on the grounds that Workman received ineffective
assistance of counsel. Doc. 293. The motion for a new trial
was denied. Doc. 299. On January 12, 2015, Workman filed a
motion requesting a Franks hearing and then
subsequently filed two motions that amended the motion
requesting a Franks hearing on January 21, 2015, and
January 29, 2015. Docs. 347, 357, 362. These motions alleged
that the warrants issued in this case were based on false
statements made by police. Doc. 347. The trial court denied
these motions on February 15, 2015. Doc. 365.
On February 4, 2015, he was sentenced to forty years in
prison. Sentencing Hearing Tr. 42. Doc. 368. Workman filed a
direct appeal of his conviction on March 9, 2015. Doc. 381.
He challenged the inventory search of his utility vehicle and
his conviction for tampering with evidence. Doc. 424. In this
appeal, Workman did not raise the issues presented in the
action now before this Court. See State v. Workman,
2015-Ohio-5049, 52 N.E.3d 286, ¶ 8 (3d
Dist). After hearing his appeal, this Court affirmed the
decision of the trial court. Id. The Supreme Court
of Ohio did not accept his appeal for review of this
Court's decision. See State v. Workman, 145 Ohio
St.3d 1445, 2016-Ohio-1596, 48 N.E.3d 584.
On April 8, 2015, Workman submitted another motion requesting
a Franks hearing with the trial court that
challenged the warrants in this case, claiming the warrants
were issued on the basis of false statements. Doc. 394. This
motion was denied on April 10, 2015. Docs. 402. Workman did
not appeal the denial of this motion. On September 16, 2015,
Workman filed a petition for postconviction relief. Doc. 414.
The arguments in this petition raised ineffective assistance
of counsel claims and questioned whether the State released
all relevant evidence to the Defense. Id. This
motion for postconviction relief was denied by the trial
court on February 11, 2016. Doc. 441. On February 16, 2016,
Workman filed another motion requesting a Franks
hearing. Doc. 446. This motion alleged that the warrants
issued in this case were based on false statements made by
the police. Id. The trial court denied this motion
on February 19, 2016. Docs. 448.
On March 4, 2016, Workman appealed the decision of the trial
court to deny his February 11, 2016 petition for
postconviction relief. Docs. 463, 467. On March 7, 2016,
Workman filed a notice of appeal, challenging the trial
court's decision to deny his February 16, 2016 motion
requesting a Franks hearing. Docs. 469, 479. On July
25, 2016, this Court affirmed the trial court's decision
to deny both of these motions. Doc. 502. On August 11, 2016,
Workman filed a motion for a new trial, claiming "there
was accident or surprise, in that the Defendant did not
expect the State to produce or use fraudulent evidence
against this defendant." Doc. 504. On August 12, 2016,
Workman submitted a motion for a new trial claiming that
"the State knowingly and intentionally presented
fraudulent evidence against this defendant * * *." Doc.
512. The trial court denied these motions on October 27,
2016. Doc. 530. Workman did not file an appeal in response to
this decision by the trial court.
On December 12, 2016, Workman filed a motion for a new trial.
Doc. 533. This motion alleged that newly discovered evidence
had surfaced and requested an evidentiary hearing. Doc. 533.
The newly discovered evidence that this motion purportedly
identified was a photograph that was admitted as an exhibit
to trial. Id. Ex. 104-3. This photo captures a fully
clothed teenage girl sitting on a counter in a hotel room.
Ex. 104-3. The reflection of the person taking the picture
can be partially seen in the mirror behind the girl.
Id. However, the flash from the camera obscures the
face of the person taking the picture, leaving only portions
of his right arm and abdomen visible. Id.
Workman's motion for a new trial was accompanied by a
letter from an alleged expert. Doc. 533. The alleged expert
claimed that the person taking the picture had a tattoo on
his arm. Id. Workman asserted that this demonstrated
that he was not the person who took the pictures as he did
not have a tattoo on his right arm. Id.
On January 23, 2017, Workman filed an amendment to his
December 12, 2016 motion for a new trial. Doc. 544. This
document claimed that the photograph that was admitted to
trial as State's Exhibit 104-3 was taken on November 5,
2013, which was after Workman was taken into custody on
September 30, 2013. Id. Workman argued that this was
new evidence that showed he was not guilty of the crime for
which he was convicted. Id. Affixed to this motion
was a screenshot and a few handwritten notes scrawled on
letterhead from PC Solutions. Id. The screenshot
shows the properties of the computer file which contained the
photograph that is State's Exhibit 104-3. The
properties-or file attributes-show that this file was created
on November 5, 2013. Id. The page with handwritten
notes records the file attributes that were displayed in
Windows Photo Viewer. Id. The name of the person who
opened this computer file for Workman at PC Solutions is
listed, but no expert credentials or further identification
is included anywhere in this motion. Id.
In response to these pleadings, the State filed an objection
to defendant's motion for a new trial on February 17,
2017, arguing that neither document disclosed any new
evidence but only asserted "new interpretations on old
evidence." Doc. 548. The State first addressed the
information alleging that the photographer in State's
Exhibit 104-3 had a tattoo on his arm. The State pointed out
that Workman's own expert, Patrick Mains, testified at
trial that he could not conclude that the person taking the
photograph in State's Exhibit 104-3 had a tattoo on his
arm. Id. Rather, Mains testified that this dark area
on the photographer's arm could be only a shadow.
Id. Trial Tr. 900, 902-903.
The State then addressed the allegations that the photograph
that was admitted as State's Exhibit 104-3 was taken
after Workman had been taken into custody. Doc. 548. On this
issue, the State explained that the file attributes, which
were depicted in the screenshots submitted by Workman, were
the dates on which the digital files were created during the
course of the investigation not the dates on which the
pictures were taken. Id. The dates presented under
the file attributes represented the creation of copies of the
original images found on Workman's phone. Id.
The metadata that recorded the time at which these pictures
were taken had been removed from the picture files prior to
Workman's apprehension. Id. Since the metadata
had been removed, the nude pictures and the photograph that
was admitted at trial as State's Exhibit 104-3 only
contained the date on which they were modified, which was
March 14, 2013. Id. Trial Tr. 644-646. The State