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State v. Rubin

Court of Appeals of Ohio, Eighth District, Cuyahoga

August 2, 2018

STATE OF OHIO PLAINTIFF-APPELLEE
v.
AMIR S. RUBIN DEFENDANT-APPELLANT

          Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-16-611747-A

          ATTORNEY FOR APPELLANT Eric M. Levy

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

          BEFORE: Boyle, J., E.A. Gallagher, A.J., and Laster Mays, J.

          MARY J. BOYLE, J.

         {¶1} Defendant-appellant, Amir Rubin, appeals his convictions and sentence. He raises five assignments of error for our review:

1. The trial court erred when it imposed consecutive sentences absent any analysis of the statutory criteria and where its findings under R.C. 2929.14(C)(4) are not supported by the evidence and facts in the record.
2. The trial court erred when it imposed a ten-year prison sentence upon appellant the length of which is not supported by the record.
3. The trial court erred in finding appellant guilty where the evidence presented at trial was insufficient to overcome appellant's Crim.R. 29 motion and to support a conviction at the close of the evidence.
4. The trial court erred in finding appellant guilty after a jury trial where the manifest weight of the evidence did not support appellant's convictions.
5. The trial court committed plain error when it failed to instruct the jury to find whether minors depicted were real children or virtual images.

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

         I. Procedural History and Factual Background

         {¶3} In November 2016, Rubin was indicted on 95 counts related to child pornography: 21 counts of pandering sexually oriented matter involving a minor in violation of R.C. 2907.322(A)(1) and (2), felonies of the second degree; 30 counts of illegal use of a minor in nudity-oriented material or performance in violation of R.C. 2907.323(A)(1), felonies of the fifth degree; 15 counts of pandering sexually oriented matter involving a minor in violation of R.C. 2907.322(A)(5), felonies of the fourth degree; 28 counts of illegal use of a minor in nudity-oriented material or performance in violation of R.C. 2907.323(A)(3), felonies of the fifth degree; and one count of possessing criminal tools in violation of R.C. 2923.24(A), a felony of the fifth degree. Rubin pleaded not guilty to all charges, and the case proceeded to a jury trial where the following evidence was presented.

         {¶4} David Frattare, director of state investigations and commander of the Internet Crimes Against Children Task Force ("ICAC") for the Cuyahoga County Prosecutor's Office, testified that between November 2014 and October 2015, the task force conducted an investigation that identified two separate "IP addresses," 24.210.238.50 and 24.210.228.196, which were advertising child pornography files or making them available to others. An IP address is a unique address for an individual computer that is using the internet. Investigator Frattare prepared a subpoena to Time Warner Cable to obtain the physical location of the IP addresses in question. He learned that the name on the account of both IP addresses belonged to Yeda, L.L.C., a business located in Cleveland, Ohio.

         {¶5} Investigator Frattare explained that he and other officers began the investigation by looking at a "peer to peer program" that is "known as E-Mule" Between November 8, 2014 and March 2, 2015, the first IP address, 24.210.238.50, made 11 files of suspected child pornography available for sharing. The investigators were able to download 5 complete and 6 partial files, and determined that 6 of the 11 files were child pornography.

         {¶6} Between June 12, 2015 and October 19, 2015, the investigators attempted to download 54 files of known or suspected child pornography from the second IP address, 24.210.228.196. Of those 54 files, they downloaded 7 complete and 4 partial files, and determined that 7 of the 54 were child pornography. Based on this information, the investigators obtained a search warrant of the business that used the IP addresses.

         {¶7} Investigator Frattare and other officers executed the search warrant. Rubin was the only person there at the time. There were several rooms, including a main office area, a large work area, supply areas, a garage, and a laundry room. The investigators found two computers in the office area. One computer was on a "simple" desk with a couple of drawers. The "simple" desk had envelopes on it with Shlomo Rubin's name on them. Shlomo Rubin's personal items were also on the desk. Shlomo Rubin is the defendant's father.

         {¶8} The other computer, a laptop, was on a "more modern desk with a credenza above it," which they determined belonged to Rubin. The laptop was running and had "the E-Mule icon for the peer to peer program" on the desktop. It also had a "U Torrent.exe" icon, a shortcut to the "Bit Torrent network," which is another peer-to-peer network. There was a men's wallet beside the laptop containing Rubin's credit cards and a driver's license. There was a credit card belonging to Rubin on the desk next to the computer. There were also several name badges on the desk from conferences or trade shows with Rubin's name on them.

         {¶9} Investigator Frattare explained that when they execute search warrants, they use a "mobile investigations vehicle," which is a van divided into two sections. The van has an interview section in the back, and various "forensic work stations" in the front that allow the officers to examine hardware and software devices in the field.

         {¶10} Rubin voluntarily spoke to the investigators during the search. He told them that he and his father were the only people who worked there. Rubin agreed that Bit Torrent and E-Mule were installed on his computer. He also agreed that he used the programs for personal use, not business. He told the officers that he used peer-to-peer networks to download "T.V., music and movies."

         {¶11} Jason Howell, a digital forensics investigator for the Cuyahoga County's Prosecutor's Office, assigned to the ICAC, testified that he operates mobile investigations when investigators conduct "on scene triage examinations of computer evidence during search warrants." He was in charge of the mobile investigations vehicle when investigators executed the search warrant at Yeda, L.L.C.

         {¶12} Investigator Howell said that the first device he examined on the scene was a Dell laptop computer, which was registered to "Rubin-97F5C5643" Investigator Howell explained that before he examined the laptop, he attached it to a "hardware write block device," which made it "read only." With the "write blocker," examiners could not alter what was on the computer in any way. Investigator Howell said that when he examined the laptop, it was in the process of sharing two child pornography files titled "Evelyn 12YO Evelyn 2010" and "PTHC 2009 New Brianna Jesse." "PTHC stands for preteen hardcore." There were also 16 files in the "temp folder" that the user was trying to download.

         {¶13} Investigator Howell testified that he found "search terms" on the E-Mule software that a user of the laptop entered into the program. The user of the Dell laptop entered search terms that included "Nastia Mouse," which he explained was the name of a series of images of females from infants to teens in various states of nudity. It also included other common child pornography search terms such as "PTHC, PTSC, 16YO, 15YO, 14YO, 12YO, Evelyn, jailbait" PTSC "stands for preteen softcore."

         {¶14} Investigator Howell discovered that multiple "USB devices" had been connected to the laptop. When a file is accessed, "Windows operating system" creates link files. The files that the user connected to the laptop were files of child pornography relating to children from 3 to 16 years old. He also found child pornography videos on the computer; one was titled, "12Y Evelyn blow job." In sum, Investigator Howell discovered hundreds of child pornography images and videos on the laptop computer. He also examined an external hard drive and USB drive that were found in the storage area of the building. These devices also had hundreds of child pornography videos and images. The child pornography files were "created" between 2008 and 2015.

         {¶15} At the close of the state's case, Rubin moved for a Crim.R. 29(A) acquittal that the trial court overruled. Rubin presented one witness on his behalf, Mark Vassel, a self-employed "computer forensic examiner."

         {¶16} Vassel testified that he started his company, Midwest Data Group, in September 2001. Before starting his own company, he worked for Olmsted Township Police Department. He became a police officer in 1991. Vassel testified his examination showed that someone accessed files on the laptop computer after the search warrant was executed (at 11:23 a.m.) but before the "write blocker" was installed (at 11:47 a.m.). He explained that "[t]he "write blocker" is "essentially an evidence bag" that "protects the integrity of the data of the information stored on the computer." Thus, Vassel stated that Investigator Howell could not have been correct when he stated that no one accessed the laptop before the write blocker was installed. Vassel further stated that in his opinion, the laptop was not running the E-Mule program at the time the computer was seized.

         {¶17} At the close of his case, Rubin renewed his Crim.R. 29(A) acquittal that the trial court again denied.

         {¶18} The jury found Rubin not guilty of two counts of second-degree illegal use of a minor in nudity-oriented material or performance, one count of second-degree pandering sexually oriented matter involving a minor, and two counts of fifth-degree illegal use of a minor in nudity-oriented material or performance. The jury found Rubin guilty of the remaining 90 counts.

         {¶19} The trial court merged Counts 54 through 94 into Counts 11 through 51. The state elected to proceed on the higher level felony counts. Thus, the trial court sentenced Rubin on Counts 1 through 51. The trial court sentenced Rubin to a total of ten years in prison; four years each for multiple counts of second-degree felony pandering in violation of R.C. 2907.322(A)(2) to be served concurrent to each other but consecutive to the other offenses, three years each for multiple counts of second-degree felony pandering in violation of R.C. 2907.322(A)(1) to be served concurrent to each other but consecutive to the other offenses, and three years each for multiple counts of second-degree illegal use of a minor in nudity-oriented material or performance in violation of R.C. 2907.323(A)(1) to be served concurrent to ...


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