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State v. Davis

Court of Appeals of Ohio, Eighth District, Cuyahoga

December 21, 2017


         Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-15-598147-A

          ATTORNEY FOR APPELLANT Thomas A. Rein

          ATTORNEYS FOR APPELLEE Michael C. O'Malley Cuyahoga County Prosecutor BY: Carl Sullivan Holly Welsh Assistant County Prosecutors

          BEFORE: Boyle, P.J., S. Gallagher, J., and Jones, J.



         {¶1} Defendant-appellant, Hasan Malik Davis, appeals his convictions and sentence. On appeal, he raises three assignments of error:

1. The trial court erred by failing to grant a judgment of acquittal, pursuant to Crim.R. 29(a), on the charges, and thereafter entering a judgment of conviction of that offense as those charges were not supported by sufficient evidence, in violation of defendant's right to due process of law, as guaranteed by the Fourteenth Amendment to the United States Constitution.
2. Appellant's convictions are against the manifest weight of the evidence.
3. The trial court erred by ordering convictions and a consecutive sentence for separate counts because the trial court failed to make a proper determination as to whether those offenses are allied offenses pursuant to R.C. 2941.25 and they are part of the same transaction under R.C. 2929.14.

         {¶2} Finding no merit to his appeal, we affirm.

         I. Procedural History and Factual Background

         {¶3} On August 27, 2015, the Cuyahoga County Grand Jury indicted Davis for 13 counts of pandering sexually oriented matter involving a minor in violation of R.C. 2907.322(A)(1), 11 counts of illegal use of minor in nudity oriented material or performance in violation of R.C. 2907.323(A)(1), 6 counts of pandering sexually oriented matter involving a minor in violation of R.C. 2907.322(A)(5), and 1 count of possessing criminal tools in violation of R.C. 2923.24(A). The counts for pandering sexually oriented material and illegal use of a minor were tried before a jury. Davis waived his right to a jury trial as to the remaining count, possessing criminal tools, which was bifurcated and tried to the bench. The following evidence was presented at trial.

         Jury Trial for Counts 1-30

         {¶4} On March 17, 2015, Detective Beth Crano of the Cuyahoga County Prosecutor Office's Internet Crimes Against Children Task Force ("ICAC") received a "cyber tip" from the National Center for Missing and Exploited Children. The tip concerned images of child pornography that was found in a Sky Drive account associated with a particular email address.[1] After confirming that the images were child pornography, Detective Crano subpoenaed the internet service provider, Time Warner Cable, who informed Detective Crano that the IP address listed in the cyber tip was assigned to a specific address in Lyndhurst, Ohio. Time Warner Cable also informed Detective Crano that the IP address's subscriber was Davis and that a separate personal email address and a telephone number were listed as well. Detective Crano then contacted the United States Postal Service, who informed Detective Crano that Davis and Brenda Mitchell, Davis's mother, received mail at the Lyndhurst address. After performing background checks and conducting surveillance, investigators obtained a search warrant for the residence.

         {¶5} On August 6, 2015, detectives from ICAC, the United States Secret Service, and other law enforcement agencies executed the search warrant and found Davis inside. Detectives took photographs and searched a number of electronic devices in the residence, including a Samsung Notebook laptop in Davis's bedroom, a Samsung Note 4 mobile cell phone, a Gateway NV Series laptop, a Sandisk Cruzer Glide 16, [2] and a Sony Playstation 4. Forensic examiners performed on-scene previews of the information on those devices and located the images listed in the cyber tip on Davis's Samsung laptop computer. Specifically, forensic examiners located a folder, titled "Japan WWE, " on the Samsung laptop that contained a number of subfolders, including one titled "Little."[3] Inside that subfolder, forensic examiners located approximately 30 images of child pornography, some of which were the images identified in the cyber tip. Examiners also found the images saved onto the Sandisk Cruzer and located additional images of nude children on Davis's Gateway laptop.[4]

         {¶6} During the search and after reading Davis his Miranda rights, Detective Crano and a special agent from the United States Secret Service interviewed Davis. The interview was video and audio recorded and played before the jury at trial. During the interview, Davis admitted that he viewed pornography and that he visited pornographic websites, such as PornHub, xHamster, and[5] Davis confirmed that the email address listed in the cyber tip belonged to him and that all of the electronic devices seized from the residence were his, but initially denied saving any pornography or having any child pornography on those devices. Later during the interview, however, Davis confirmed that certain folders on his computer contained pornography, including "Models" and "Random Girls." He also confirmed that he recently created a "throw-off" folder titled, "Japan WWE." While he initially claimed that he did not know what was in that folder, he later told the investigators that the file contained a handful of subfolders. When the investigators told Davis that they found approximately 30 images of child pornography within the subfolder, "XXX, " as well as on his phone, he told them that he obtained the images from another user on Davis explained that the user sent him a file containing about 800 images, "a lot" of which was child pornography and that he saved that file containing those images to his laptop. Davis said that in some of the images he saw the children were clearly under the age of 18, were all different races, were naked, and in some of those images, were having sex with adult males. Davis said that once he saw some of those images, he saved them on his laptop in his "Pictures" folder and that he took the images from the Pictures folder and dragged them into the "JapanWWE" folder. He stated that all of the images of child pornography that he saved were within the subfolder titled "Little." When asked why he saved the images of child pornography, Davis said he did not know and that, after first seeing it, he was shocked. He then stated that he should have deleted it.

         {¶7} At trial, Detective Crano and Detective Frattare testified as to their professional backgrounds and the above-described events. Based on some discrepancies between the dates listed in the indictment and those presented during the officers' testimonies, the state moved to dismiss Counts 4-12, pandering sexually oriented matter involving a minor, and Counts 19-23, illegal use of minor in nudity oriented material or performance. The court granted the state's motion.

         {¶8} The state then called Special Investigator Howell, the computer forensics specialist who performed a search of Davis's electronic devices. He testified that the Samsung laptop computer had a folder titled "Users" that was created by the user, Hassi_000. Howell explained that a user can create his own folders - which he referred to as "user-directed folders" - in addition to those already created by the computer's operating system. Inside the Users folder were a number of standard folders, one of which was labeled "Pictures." The Pictures folder contained a user-directed subfolder titled "Japan WWE, " which then contained a subfolder titled, "XXX." That folder then contained nine user-directed subfolders, one of which was "Little." Special Investigator Howell testified that the eight other user-directed subfolders within "XXX" seemed to accurately describe their contents. For example, Howell testified that the subfolder labeled "Cartoon" contained animation images, the subfolder labeled "Models" contained professional images of models, and the subfolder labeled "World's Most Beautiful Vagina Contest" contained images "indicative of the title."

         {¶9} Howell then identified the images of child pornography that were located within the folder labeled "Little." Howell testified that the files were originally from the computer's folder labeled "Downloads" and that the files in that folder would likely have come from the internet after being downloaded by a user. He stated that the files were received or downloaded into the Downloads folder in October 2014. Howell explained that the files were originally part of a compressed file, which makes it easier to send and receive a number of files over the internet. Howell also testified that the contents of the Downloads folder will remain in that folder unless the user takes other action, such as moving or copying the files into another location. To move the files from the Downloads folder, Howell stated that the files needed to be "unzipped, " which meant that the files needed to be decompressed. Once unzipped, each file's title as well as a thumbnail image of each file would appear, allowing the user to preview the images.[6] Howell did admit later, however, that he did not look into whether the files had thumbnail images and that a user could opt out of having the thumbnail images displayed. Further, on cross-examination, Howell stated that he could not name the original folder or location from where the images were copied on the computer before being put into the Little folder.

         {¶10} Howell then testified that the images had different "create dates, " including March 21, 2014, June 16, 2014, and February 25, 2015, and Howell described March 21, 2014, June 16, 2014, and February 25, 2015, as the "create dates, " meaning that those were the dates where the images of child pornography appeared in the Little folder. He also explained that the create dates would remain the same if moved from one subfolder to another, but would change if the image was copied into another location on the computer. Howell explained that during the search of the Samsung laptop, the images were not located in the Downloads folder, but in the Little subfolder, meaning that a user moved or copied the images from Downloads to Little. Based on his observations of the files' create dates, Howell testified that he believed the images were copied into the Little folder on their respective create date, February 25, 2015.

         {¶11} He also stated that the images within the Little folder were consistent with one another in terms of their content. Howell explained, however, that he could not tell when certain files were opened or viewed on the computer and that he had no evidence to support whether the files were ever opened. Howell also explained that he could not tell if any of the images of child pornography were ever deleted but then recovered, because his examination of the files did not include that analysis. He also stated that none of the files contained what he considered to be a descriptive title, suggesting the contents of the downloaded files to the receiver.

         {¶12} At the close of the state's case, Davis moved for a Crim.R. 29 ...

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