Login | June 23, 2021

7th District reverses importuning convictions

Legal News Reporter

Published: June 11, 2021

After a jury trial, appellant Gary D. Lee, Jr. was convicted in a Carroll County trial court on two counts each of pandering sexually oriented matter involving a minor and pandering obscenity involving a minor.
The “possession convictions” were merged with the importing convictions, and Lee was sentenced in February 2020 to an indefinite term of 10 years to 12 and a half years in prison. He was also declared a Tier II sexually oriented offender.
On appeal, Lee argued an image that allegedly depicts a minor was based on speculation. He also claimed the state failed to establish he viewed the two images at issue or that he was aware the images were stored on a micro-SD card of which he conceded ownership.
Lastly, Lee claimed the state failed to identify the source of the images or demonstrate he brought or caused to be brought the images into the state of Ohio.
The 7th District Court of Appeals recently found there is sufficient evidence to support the possession convictions.
However, the importing convictions were reversed and vacated. The state is prohibited from any further prosecution of the importing charges, and the case was remanded for resentencing on the possession convictions.
Three witnesses testified for the state at the jury trial – Capt. Troy Watson and Lieutenant Charles Saler of the Carroll County Sheriff’s Office, and Clairice Cowgill, a computer forensic specialist with the Bureau of Criminal Investigation.
On April 3, 2019, deputies executed a search warrant for electronic devices, computer equipment, and storage devices at a residence owned by Lee’s mother and stepfather. Lee lived in the basement of the home.
The search yielded a micro-SD card with 10,657 images, which was found among Lee’s personal items. A second search warrant was secured for the contents of his micro-SD card.
Other than the two images charged in the indictment, the remaining contents of the micro-SD card are not in the record, as the trial court sustained a motion in limine filed by Lee to prohibit the state from publishing any other images on the micro-SD card to the jury.
Counts two through five of the indictment were based upon two images – one is of a male toddler with his hand inside of a woman’s sheer and the other “an Asian girl who appear[s] to between the ages of 12-14 involved in a sex act with an adult.”
The state’s witnesses conceded they were unable to identify the origin of either image or the actual age of the girl in the second image and could not determine whether Lee ever viewed the images or was aware that they were among the 10,000-plus images on the card.
On the witness stand, Watson conceded he “guessed” the age of the girl in the second image.
In his 3-0 opinion, 7th District Judge David A. D’Apolito cited State v. Maxwell (95 Ohio St.3d 254, 2002-Ohio-2121, 767 N.E.2d 242), which held the state must prove beyond a reasonable doubt that an appellant brought or caused to be brought the images into Ohio.
“Maxwell downloaded obscene images onto his computer,” Judge D’Apolito wrote. “While he conceded that he knew the images were obscene, he argued that he did not know that he was downloading them from a computer system in another state, thereby importing the images into Ohio. The testimony at Maxwell’s trial established that he downloaded the images from America Online, an internet service provider, and that all America Online traffic passes through the company’s servers in Virginia.
“The Maxwell court found that the statute imposed strict liability on the importing element.”
Lee correctly argued the state failed to offer any evidence of the origin of the images, and, as a result, there is insufficient evidence regarding the importing element of R.C. 2907.322(A)(6), Judge D’Apolito added. “The only reference to the state’s burden on the importing element in the joint statement of facts is the state’s argument in closing that the images were ‘probably’ downloaded from the internet.”
Appellate judges Gene Donofrio and Carol Ann Robb concurred.
The case is cited State v. Lee, 2021-Ohio-1158.