State v. Maranger , 110 N.E.3d 895 ( 2018 )

[Cite as State v. Maranger, 2018-Ohio-1425.]
IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
MONTGOMERY COUNTY
STATE OF OHIO :
:
Plaintiff-Appellee : C.A. CASE NO. 27492
:
v. : T.C. NO. 2015-CR-2424
:
ROBERT MARANGER : (Criminal Appeal from
: Common Pleas Court)
Defendant-Appellant :
:
...........
OPINION
Rendered on the 13th day of April, 2018.
...........
MATHIAS H. HECK, JR., by HEATHER JANS, Atty. Reg. No. 84470, Assistant
Prosecuting Attorney, Montgomery County Prosecutor’s Office, Appellate Division,
Montgomery County Courts Building, 301 W. Third Street, 5th Floor, Dayton, Ohio 45422
Attorney for Plaintiff-Appellee
ROBERT BRENNER, Atty. Reg. No. 67714, P.O. Box 340214, Beavercreek, Ohio 45434
Attorney for Defendant-Appellant
.............
DONOVAN, J.
{¶ 1} Defendant-appellant Robert Maranger appeals his conviction and sentence
for one count of rape (child under ten years of age), in violation of R.C. 2907.02(A)(1)(b),
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a felony of the first degree; and one count of gross sexual imposition (child under thirteen
years of age), in violation of R.C. 2907.05(A)(4), a felony of the third degree. Both counts
were accompanied by sexually violent predator specifications, in violation of R.C.
2941.148(A). Maranger filed a timely notice of appeal with this Court on March 8, 2017.
{¶ 2} On August 7, 2015, at approximately 4:30 p.m., Butler Township Police
Officers Ashworth, Guthrie, and Bilbrey were dispatched to a Quality Inn hotel located at
3661 Maxton Road in Butler Township, Ohio, on a report that an employee had observed
a minor female involved in sexual activity with an adult male, later identified as Maranger.
When the police arrived at the hotel, they spoke with the clerk, Linda Kerley. Kerley
informed the officers that by utilizing a security camera located in the exercise room of
the hotel, she had observed Maranger place his penis into the mouth of a minor female,
later identified as the victim, J.C.F.N. Kerley also informed the officers that she had
watched Maranger and J.C.F.N. walk to room #305 after leaving the exercise room.
{¶ 3} Thereafter, the officers went to room #305 and knocked on the door.
Maranger, J.C.F.N., and Y.N., J.C.F.N.’s mother, exited the hotel room. While Officer
Ashworth spoke with Maranger at the end of the hallway, Lieutenant Guthrie informed
Y.N. of the allegations against Maranger. Y.N. informed Lt. Guthrie that Maranger was
her boyfriend and J.C.F.N. was her daughter, and that the three of them had been on
vacation in Washington, D.C. Y.N. further stated that they were traveling back to
Wisconsin where they all lived together. Y.N. informed Lt. Guthrie that Maranger had
previously been convicted of a sexually oriented offense and was required to register in
Wisconsin. Kerley positively identified Maranger as the man she had observed in the
surveillance video, and he was arrested and taken into custody. J.C.F.N. was taken to
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Dayton Children’s Hospital where she was evaluated and treated.
{¶ 4} Detective Kevin Sink traveled to the hotel where the offense had occurred in
order to watch the surveillance video. Detective Sink testified that the video initially
depicted Maranger and J.C.F.N. in the hotel pool playing a game where the child would
go underwater and pause near Maranger’s genital area. Maranger would then go
underwater and briefly put his head between the child’s legs before surfacing. Detective
Sink testified that the video also depicted Maranger making a thrusting motion while the
child straddled him in the pool for approximately thirty seconds.
{¶ 5} Detective Sink further testified that the video depicted that Maranger and
J.C.F.N. left the hotel pool and entered the exercise room. Once in the exercise room,
Detective Sink testified that the video showed Maranger turn off the lights and pull his
penis out of his shorts. After exposing himself, Maranger pulled J.C.F.N. over to him,
and she placed his penis in her mouth. Detective Sink made a copy of the surveillance
video on a flash drive, and Maranger was transported to the Montgomery County Jail and
charged with rape.
{¶ 6} Lt. Guthrie traveled to Dayton Children’s Hospital in order to interview
J.C.F.N. and her mother, Y.N. Y.N. informed Lt. Guthrie that she and J.C.F.N. began
living with Maranger in his Wisconsin residence in June of 2015. Lt. Guthrie testified that
Y.N. stated that other than the incident at the hotel that had just occurred, she was
unaware of any suspicious sexual activity between Maranger and J.C.F.N. Y.N.,
however, did inform Lt. Guthrie that on two occasions while they were living together at
Maranger’s house, she discovered pornographic pictures on the computer involving an
adult male and a small female child. When Y.N. confronted Maranger about the pictures,
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he denied looking at any pornographic websites involving juveniles.
{¶ 7} After being treated at the hospital, J.C.F.N. was interviewed at CARE House
on August 8, 2015. When she was asked by the interviewer about her relationship with
Maranger, J.C.F.N. pulled a blanket over her head and refused to speak. Shortly after
the CARE House interview, Y.N. and J.C.F.N. traveled back to Wisconsin, where they
lived at Maranger’s residence. Shortly after returning to Wisconsin, J.C.F.N. began
disclosing prior sexual abuse committed by Maranger to Y.N. J.C.F.N. also began
drawing pictures of the sexual acts involving Maranger. Based upon J.C.F.N.’s
disclosures of the sexual abuse she had suffered at Maranger’s hands, Y.N. contacted
the Wisconsin authorities in order to arrange an interview. Thereafter, during another
forensic interview conducted in Wisconsin, J.C.F.N. disclosed the additional sexual abuse
committed by Maranger.
Procedural History
{¶ 8} On August 17, 2015, Maranger was indicted for one count of rape (child
under ten years of age); and seven counts of gross sexual imposition (child under thirteen
years of age). As previously stated, each count was accompanied by a sexually violent
predator specification. At his arraignment on August 21, 2015, Maranger waived the
reading of the indictment and pled not guilty to all of the counts in the indictment.
{¶ 9} On May 5, 2016, Maranger pled guilty to one count of rape and one count of
GSI (Counts I and II) in exchange for the State’s agreement to dismiss all of the remaining
counts in the indictment. Although Maranger pled guilty to two of the underlying counts,
he did not plead guilty to the attached specifications. Therefore, following the plea
hearing, the trial court scheduled a bench trial, as elected by Maranger, to be held solely
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with respect to the two remaining sexually violent predator specifications.1 On February
29, 2016, Maranger filed a motion to bifurcate the attached specification counts from the
underlying offenses for which he was charged. On the same day, the trial court granted
Maranger’s motion to bifurcate the specification counts.
{¶ 10} On August 12, 2016, Maranger filed a motion to suppress. In his motion,
Maranger challenged the validity of six search warrants that were issued by the trial courts
in Montgomery County, Ohio, and Dane County, Wisconsin. In his motion, Maranger
also sought to suppress any statements he made to police and parole officers that related
to his arrest in the instant case. A hearing was held on said motion on August 25, 2016.
On September 29, 2016, the trial court issued a decision overruling Maranger’s motion to
suppress in its entirety. After a two-day bench trial which ended on January 31, 2017,
Maranger was found guilty of the two sexually violent predator specifications attached to
his convictions for rape and GSI.
{¶ 11} On March 1, 2017, the trial court sentenced Maranger to a mandatory prison
term of life in prison without the possibility of parole for rape, and a mandatory prison term
of five years to life for GSI. The trial court ordered that Maranger’s sentences be served
consecutively, with the sentence for GSI to run prior to his sentence for rape. The trial
court also designated Maranger a Tier III sex offender.
{¶ 12} It is from this judgment that Maranger now appeals.
{¶ 13} Maranger’s sole assignment of error is as follows:
1 R.C. 2971.02 states that “[i]n any case in which a sexually violent predator specification
is included in the indictment, count in the indictment, or information charging a violent sex
offense or a designated homicide, assault, or kidnapping offense and in which the
defendant is tried by a jury, the defendant may elect to have the court instead of the jury
determine the sexually violent predator specification.”
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{¶ 14} “THE TRIAL COURT ERRED WHEN IT OVERRULED DEFENDANT’S
MOTION TO SUPPRESS EVIDENCE.”
{¶ 15} In his sole assignment, Maranger contends that the trial court erred when it
overruled his motion to suppress evidence with respect to the search warrants issued on
September 22, 2015, November 10, 2015, November 12, 2015, and May 4, 2016.
Maranger argues that the trial court erred when it failed to suppress the evidence obtained
from his home during a warrantless search by police which occurred on August 10, 2015.
Maranger also argues that the trial court erred when it failed to suppress any statements
made to police and parole authorities during the course of the investigation. Lastly,
Maranger argues that the trial court erred when it failed to suppress the search of his
computer which occurred on or about June 17, 2016.
{¶ 16} In ruling on a motion to suppress, the trial court “assumes the role of the
trier of fact, and, as such, is in the best position to resolve questions of fact and evaluate
the credibility of the witnesses.” State v. Retherford, 93 Ohio App. 3d 586, 592, 639 N.E.2d
498 (2d Dist.1994); State v. Knisley, 2d Dist. Montgomery No. 22897, 2010–Ohio–116, ¶
30. Accordingly, when we review suppression decisions, we must accept the trial court's
findings of fact if they are supported by competent, credible evidence. Retherford at 592,
639 N.E.2d 498. “Accepting those facts as true, we must independently determine as a
matter of law, without deference to the trial court's conclusion, whether they meet the
applicable legal standard.” Id.
A. Warrantless Search of Maranger’s Wisconsin Residence on August 10, 2015
{¶ 17} Detective Brian Frisch testified that shortly after the incident occurred in
Ohio, one of Maranger’s neighbors in Wisconsin became aware of the arrest. The
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neighbor contacted the Dane County Sheriff’s Office in Wisconsin with information that
he had personally observed Maranger with a young female child at his home. The
neighbor stated that he was concerned because Maranger was a known sex offender.
Based upon the information supplied by Maranger’s neighbor, Deputy Brad Day from the
Dane County Sherriff’s Office was assigned to investigate. Deputy Day contacted the
neighbor and interviewed him.
{¶ 18} Thereafter, Dane County Sheriff’s Deputy Dale Veto contacted Y.N. in order
to discuss the sexual assault. While speaking on the telephone, Y.N. disclosed two
separate incidents when she observed Maranger viewing child pornography on a
computer inside the home they shared in Wisconsin. Based upon the information from
Deputy Veto, Detective Frisch contacted Detective Sink from the Butler Township
Sheriff’s Office in order to gather information regarding Maranger’s sexual assault of
J.C.F.N. Detective Sink provided Detective Frisch with the names of J.C.F.N. and Y.N.,
as well as their phone number.
{¶ 19} On August 10, 2015, Detective Frisch, accompanied by his partner,
Detective Heidi Gardner, went to the residence where Y.N. and J.C.F.N. lived with
Maranger in Wisconsin. At that time, Maranger was in custody in Ohio. Y.N. informed
the detectives that she had moved in with Maranger in June of 2014, but J.C.F.N. had not
come to live with them until June of 2015. Y.N. also informed the detectives that the
computer upon which she discovered Maranger viewing child pornography was located
in the living room in the residence. Additionally, Y.N. stated that while the computer was
owned by Maranger, everyone in the house had access to it. Thereafter, Y.N. permitted
Detective Gardner to come inside the house and secure the computer located in the living
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room. Detective Gardner entered the residence, disconnected the computer, and
carried it outside where she placed it in the backseat of Detective Frisch’s cruiser. No
search of the computer was conducted at this time.
{¶ 20} Unless a recognized exception applies, the Fourth Amendment to the U.S.
Constitution mandates that police obtain a warrant based on probable cause in order to
effectuate a lawful search. State v. Holloway, 2d Dist. Clark No. 04CA0070, 2006–Ohio–
4797, ¶ 15–16, citing Katz v. United States, 389 U.S. 347, 88 S. Ct. 507, 19 L. Ed. 2d 576
(1967). Valid consent to search is a recognized exception to the warrant requirement.
State v. Moon, 2d Dist. Montgomery No. 9288, 1986 WL 2368, *1 (Feb. 14, 1986), citing
Schneckloth v. Bustamonte, 412 U.S. 218, 93 S. Ct. 2041, 36 L. Ed. 2d 854 (1973). “A
police officer may validly enter and search a home, without a warrant, when the officer
has obtained the voluntary consent of an occupant who shares, or is reasonably believed
to share, authority over the area in common with a non-present co-occupant.” State v.
Keggan, 2d Dist. Greene No. 2006 CA 9, 2006–Ohio–6663, ¶ 45. (Citations omitted.)
{¶ 21} Proper consent can be given by a third party, but the third-party must
possess “common authority over the area sought to be searched.” State v. Miller, 117
Ohio App. 3d 750, 759, 691 N.E.2d 703 (11th Dist.1997), citing United States v. Matlock,
415 U.S. 164, 171, 94 S. Ct. 988, 39 L. Ed. 2d 242 (1974). (Other citation omitted.)
“Common authority rests ‘on mutual use of the property by persons generally having joint
access or control for most purposes, so that it is reasonable to recognize that any of the
co-inhabitants has the right to permit the inspection in his own right and that the others
have assumed the risk that one of their number might permit the common area to be
searched.’ ” State v. Pugh, 2d Dist. Montgomery No. 25223, 2013–Ohio–1238, ¶ 9, citing
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Matlock at 171, 94 S. Ct. 988, 39 L. Ed. 2d 242, fn. 7. “[T]he United States Supreme Court
has applied a ‘reasonable belief’ standard for determining whether a police officer's
reliance upon the consent of a third party was proper under particular circumstances.”
Miller at 759, 691 N.E.2d 703. “That is, before a trial court can conclude that a
warrantless search was valid on the basis of a third-party consent, it must find that the
facts of the case supported a reasonable belief on the part of the police officer that the
third party had the authority to consent to the search.” Id.
{¶ 22} The trial court found that a valid consent to search was given by Y.N in this
case. Specifically, the trial court found, and we agree, that Y.N. was authorized to permit
the detectives to enter the residence because she stated that she lived there with her
daughter at the time, whereby she appeared to have authority over the premises.
Furthermore, the computer was located in the living room, a common area of the house,
and Y.N. informed the detectives that everyone in the house had access to the computer.
We also note that the computer was not searched at the time it was removed from the
house. Rather, it was secured by the detectives until such time that a warrant could be
issued to search the computer.
{¶ 23} Upon review, we conclude that even assuming Y.N. did not have actual
authority to consent to Detective Gardner entering the residence and removing the
computer, the trial court did not err in finding that she possessed the apparent authority
to do so. As previously stated, a warrantless entry is valid if the police reasonably
believe, although incorrectly, that the person giving consent possessed common authority
over the premises. Furthermore, the computer’s contents were not searched until after
a warrant was obtained to do so. Accordingly, Maranger’s first argument is without merit.
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B. Warrant Issued on September 22, 2015 to Search Maranger’s Residence
{¶ 24} In his second argument, Maranger argues that the trial court erred when it
overruled his motion to suppress the evidence obtained from his Wisconsin residence on
September 23, 2015. Specifically, Maranger challenges the search warrant authorizing
the search, claiming that the warrant was not supported by probable cause, that there
was no connection to Maranger’s residence and the crimes he committed in Ohio, that it
contained stale information, and that it was overbroad. We note that the items that were
ultimately seized from Maranger’s residence included the following: 1) an invoice from
General Heating and AC for Bob Maranger; 2) Canon Digital Camera; 3) Nikon Digital
Camera; 4) Canon SD Memory Card – 32 MG; 5) Personal Maintenance Contract; 6)
three VHS tapes; 7) ten Maxell 3.5 GB floppy disks; 8) drug paraphernalia; 9) seven
DVDs, one CDR – pornography tapes; 10) 2 pieces of paper containing pornography
websites; 11) three metal pipes, one glass pipe; 12) twenty-seven miscellaneous
condoms; 13) tube of Astroglide; 14) small Ziploc bag containing a green leafy substance;
and 15) old movie film reel.
{¶ 25} The Fourth Amendment to the U.S. Constitution and Ohio Constitution,
Article I, Section 14 provide that search warrants may only be issued upon probable
cause, supported by oath or affirmation, particularly describing the place to be searched,
and the person and/or things to be seized. See also State v. Jones, 143 Ohio St. 3d 266,
2015–Ohio–483, 37 N.E.3d 123, ¶ 11.
{¶ 26} We begin our analysis with the governing legal standards. Under Crim.R.
41, a request for a search warrant requires a sworn affidavit “establishing the grounds for
issuing the warrant.” Crim.R. 41(C)(1). The judge may issue a search warrant if the
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judge finds, based on the information in the affidavit, that “probable cause” for the search
exists. Crim.R. 41(C)(2). “The finding of probable cause may be based upon hearsay in
whole or in part, provided there is a substantial basis for believing the source of the
hearsay to be credible and for believing that there is a factual basis for the information
furnished.” Id. “In determining the sufficiency of probable cause in an affidavit submitted
in support of a search warrant, ‘[t]he task of the issuing magistrate is simply to make a
practical, common-sense decision whether, given all the circumstances set forth in the
affidavit before him, including the “veracity” and “basis of knowledge” of persons
supplying hearsay information, there is a fair probability that contraband or evidence of a
crime will be found in a particular place.’ ” State v. George, 45 Ohio St. 3d 325, 544 N.E.2d
640 (1989), paragraph one of the syllabus, quoting Illinois v. Gates, 462 U.S. 213, 238–
239, 103 S. Ct. 2317, 76 L. Ed. 2d 527 (1983).
{¶ 27} “[T]he duty of a reviewing court is simply to ensure that the magistrate had
a ‘substantial basis for * * * conclud[ing]’ that probable cause existed.” Gates at 238–239,
quoting Jones v. United States, 362 U.S. 257, 271, 80 S. Ct. 725, 4 L. Ed. 2d 697 (1960);
State v. Castagnola, 145 Ohio St. 3d 1, 2015–Ohio–1565, 46 N.E.3d 638, ¶ 35.
Ordinarily, “a probable cause inquiry must be confined to the four corners of the affidavit.”
State v. Klosterman, 114 Ohio App. 3d 327, 333, 683 N.E.2d 100 (2d Dist.1996). In
reviewing whether a search warrant has been issued upon probable cause, courts must
examine the totality of the circumstances. Jones, 143 Ohio St. 3d 266, 2015–Ohio–483,
37 N.E.3d 123, at ¶ 15.
{¶ 28} Trial courts and appellate courts “should accord great deference to the
magistrate's determination of probable cause, and doubtful or marginal cases in this area
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should be resolved in favor of upholding the warrant.” State v. George, 45 Ohio St. 3d 325,
544 N.E.2d 640 (1989), paragraph two of the syllabus; Jones, 143 Ohio St. 3d 266, 2015–
Ohio–483, 37 N.E.3d 123, at ¶ 14.
{¶ 29} Finally, we note that the “Supreme Court of the United States held that
evidence obtained in violation of the Fourth Amendment by an officer acting in objectively
reasonable reliance on a search warrant issued by a neutral and detached magistrate
need not be excluded from state criminal prosecution. (Citations omitted).” State v.
Arnold, 2d Dist. Clark No. 2016 CA 20, 2017–Ohio–559, ¶ 48.
{¶ 30} On September 22, 2015, Detective Frisch was issued a warrant to search
the residence located in Wisconsin, owned by Maranger. The affidavit states as follows:
Your affiant and Detective Gardner made contact with [Y.N.] on
Monday, August 10 at her residence. [Y.N.] reported she and her daughter
with the initials J.C.F.N. live with Maranger at * * * Drive in the Town of * *
*. [Y.N.] reported she met Maranger 5 or 6 years ago. [Y.N] reported she
has kept a relationship with Maranger since meeting him. [Y.N.] reported
around June of 2014 she moved into Maranger’s residence on * * * Dr.
[Y.N.] reported from June of 2014 till [sic] June of 2015 her daughter (who
is under the age of 18 and has the initials J.C.F.N.) did not live at Maranger’s
residence fulltime. [Y.N.] reported in June of 2015 she moved J.C.F.N. into
Maranger’s residence full time and at the same time Maranger would watch
J.C.F.N. unsupervised.
[Y.N.] told your affiant she was not aware of any sexual contact
between Maranger and J.C.F.N. prior to the incident in Ohio. [Y.N.] told
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your affiant she was aware Maranger was a registered sex offender, but
had received treatment as a result of a conviction. [Y.N.] informed your
affiant shortly before leaving on their trip that ended in Ohio she observed
Maranger viewing child pornography on his computer. [Y.N.] informed
your affiant that Maranger owns the computer, but it is in a common area of
the residence and that Maranger, [Y.N.] and J.C.F.N. can access the
computer. On 08-10-15 your affiant and Detective Gardner seized the
computer in question and secured it into evidence. A separate warrant for
the search of the computer that was seized on 08-10-15 will be requested.
Your affiant told [Y.N.] not to question J.C.F.N. about any sexual
abuse, but if J.C.F.N. discloses any sexual abuse, [Y.N.] should take note
of it and contact your affiant or Detective Sink.
On 08-26-15 your affiant conducted a second interview with [Y.N.].
[Y.N.] informed your affiant, [sic] J.C.F.N. drew a picture of her giving oral
sex to Maranger. [Y.N.] sent a copy of the drawing J.C.F.N. drew and a list
of what J.C.F.N. had disclosed to Detective Sink. J.C.F.N. also disclosed
to [Y.N.], [sic] Maranger would touch her while in a truck. J.C.F.N.
disclosed to [Y.N.], Maranger would perform oral sex on her. J.C.F.N. also
disclosed to [Y.N.], Maranger made her watch him and a blond woman have
sex. J.C.F.N. also disclosed to [Y.N.], Maranger showed his genitals to her
in the basement. [Y.N.] also stated that J.C.F.N. told her of a box of toys
that Maranger had stored in the attic or garage rafters. [Y.N.] believes
these toys and games are of a sexual nature and [Y.N.] was not aware of
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these items until J.C.F.N. described the box, and [Y.N.] denied any prior
consensual use of them with Maranger.
On 08-26-15 your affiant contacted Detective Sink and request[ed]
he forward a copy of the drawing J.C.F.N. drew and the list [Y.N.] had
completed of what J.C.F.N. disclos[ed]. On 08-27-15 Detective Sink
forwarded an email to your affiant, he received from [Y.N.] that contained
the image J.C.F.N. drew of her performing oral sex on Maranger and a list
of J.C.F.N. had disclosed to [Y.N.].
On 09-09-15 a forensic interview was conducted at Safe Harbor with
J.C.F.N. During the interview J.C.F.N. disclosed multiple acts of sexual
assault, viewing sexual activity, and viewing pornography. The disclosures
included that Maranger made her perform oral sex on him and he performed
oral sex on J.C.F.N. J.C.F.N. also disclosed Maranger tied her up with
ropes to a chair and forced her to watch Maranger have sex with an adult
female. J.C.F.N. also disclosed Maranger showed her people having sex
on the television and the computer.
During the forensic interview, J.C.F.N. described the sexual assaults
[that] occurred in Maranger’s residence, in his bedroom. One assault was
described as occurring in Maranger’s truck after attending the Dane County
Fair. J.C.F.N. also described being transported to Lake Mills and being
hoisted up a ladder, looking through a window and viewing two adults
having sex in a room. J.C.F.N. stated that Maranger held her head steady
so she could not look away, and pried her eyes open to make her view the
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people in the room. J.C.F.N. stated on one occasion, Maranger tied her
with ropes so that she could not get away and she was present in
Maranger’s bedroom when he had sex with an adult female. J.C.F.N. also
described Maranger showed her pornography featuring adults on his
television and his computer.
{¶ 31} “We have recognized in previous cases that images of child pornography
are likely to be hoarded by persons interested in those materials, to be viewed in the
privacy of their own homes, and that because of their illegality and the severe social
stigma the possession of such images carries, collectors will want to secrete them in
secure places, like a private residence, and that pedophiles, child molesters, and child-
pornography collectors tend to maintain their materials for significant periods of time.”
State v. Bennett, 192 Ohio App. 3d 608, 2011-Ohio-961, 949 N.E.2d 1064, ¶ 36 (2d Dist.);
State v. Marler, 2d Dist. Clark No. 2007 CA 8, 2009-Ohio-2423, at ¶ 40.
{¶ 32} In the instant case, we agree with the trial court that the information included
by Detective Frisch in the residential search warrant provided a “fair probability that
contraband or evidence of a crime” would be discovered in Maranger’s home. On two
separate occasions, Y.N. stated that she observed Maranger viewing child pornography
on the computer shared by everyone in the house. The affidavit also contained several
disclosures from J.C.F.N. regarding the sexual abuse she suffered from Maranger, to wit:
1) J.C.F.N. stated that Maranger made her watch child pornography on the television and
the computer located in the residence; 2) she stated that Maranger had sexually
assaulted her in his bedroom in the house; 3) she stated that Maranger tied her to a chair
with ropes and forced her to watch him have sex with an adult female in his bedroom;
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and 4) she stated that Maranger hid a box of toys, presumably sexual in nature, in the
rafters in his garage.
{¶ 33} There was in this case a nexus between the property to be seized,
downloaded images of child pornography, and the place to be searched - Maranger’s
current residence in Wisconsin – and therefore a “fair probability” that child pornography
would be found in his residence. An absolute certainty that the material would be at
defendant's residence is not required. George, 45 Ohio St. 3d 325, 544 N.E.2d 640.
Because the search warrant that produced the evidence that Maranger moved to
suppress is supported by probable cause, we need not determine whether the good-faith
exception applies.
{¶ 34} Additionally, the evidence obtained from the search warrant issued and
executed in Wisconsin is admissible in Maranger’s Ohio case because it can be used to
support his convictions for the sexually violent predator specifications. Here, the trial
court found Maranger guilty of the sexually violent predator specification as set forth in
R.C. 2971.01(H)(1) , which defines a “sexually violent predator” as “a person who, on or
after January 1, 1997, commits a sexually violent offense and is likely to engage in the
future in one or more sexually violent offenses.” R.C. 2971.01(H)(2)(a)-(f) lists the
factors that may be considered by the factfinder as evidence tending to indicate that there
is a likelihood that the person will engage in the future in one or more sexually violent
offenses. It provides:
(a) The person has been convicted two or more times, in separate criminal
actions, of a sexually oriented offense or a child-victim oriented offense. For
purposes of this division, convictions that result from or are connected with
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the same act or result from offenses committed at the same time are one
conviction, and a conviction set aside pursuant to law is not a conviction.
(b) The person has a documented history from childhood, into the juvenile
developmental years, that exhibits sexually deviant behavior.
(c) Available information or evidence suggests that the person chronically
commits offenses with a sexual motivation.
(d) The person has committed one or more offenses in which the person
has tortured or engaged in ritualistic acts with one or more victims.
(e) The person has committed one or more offenses in which one or more
victims were physically harmed to the degree that the particular victim's life
was in jeopardy.
(f) Any other relevant evidence.
{¶ 35} Evid.R. 401 defines relevant evidence as “evidence having any tendency to
make the existence of any fact that is of consequence to the determination of the action
more probable or less probable than it would be without the evidence.” Evidence of
sexually violent offenses committed against J.C.F.N. and/or other minors in Wisconsin by
Maranger at his residence is clearly relevant to his conviction for the sexually violent
predator specifications with which he was charged in Ohio.
{¶ 36} Furthermore, the information contained in the affidavit was not stale. An
affidavit in support of a search warrant must present timely information and include facts
so closely related to the time of issuing the warrant as to justify a finding of probable cause
at that time. State v. Jones, 72 Ohio App. 3d 522, 526, 595 N.E.2d 485 (6th Dist.1991).
No arbitrary time limit dictates when information becomes “stale.” Id. The test is whether
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the alleged facts justify the conclusion that certain contraband remains on the premises
to be searched. State v. Floyd, 2d Dist. Darke No. 1389, 1996 WL 139787 (Mar. 29, 1996).
If a substantial period of time has elapsed between the commission of the crime and the
search, the affidavit must contain facts that would lead the judge to believe that the
evidence or contraband is still on the premises before the judge may issue a warrant.
State v. Yanowitz, 67 Ohio App. 2d 141, 147, 426 N.E.2d 190 (8th Dist.1980).
{¶ 37} “Ohio courts have identified a number of factors to consider in determining
whether the information contained in an affidavit is stale, including the character of the
crime, the criminal, the thing to be seized, as in whether it is perishable, the place to be
searched, and whether the affidavit relates to a single isolated incident.” State v. Mays,
2d Dist. Montgomery No. 23986, 2011–Ohio–2684, ¶ 22, citing State v. Ingold, 10th Dist.
Franklin No. 07AP–648, 2008–Ohio–2303, ¶ 23.
{¶ 38} The record establishes that J.C.F.N. moved into Maranger’s residence in
June of 2015. On August 7, 2015, Maranger was arrested in Ohio for raping J.C.F.N.
On August 10, 2015, Y.N. informed Wisconsin Detectives Frisch and Gardner that on two
occasions she had observed Maranger viewing child pornography on his computer in the
residence that they shared. On August 26, 2015, Y.N. informed Detective Frisch that
J.C.F.N. had disclosed that Maranger had sexually abused her. At a forensic interview
on September 9, 2015, J.C.F.N. disclosed multiple instances of sexual abuse committed
by Maranger at his residence.
{¶ 39} Although the sexual abuse in Maranger’s home occurred between June and
August of 2015, J.C.F.N. did not disclose the abuse to Y.N. until after Maranger’s arrest
in Ohio. Furthermore, it was not until the forensic interview conducted on September 9,
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2015, that J.C.F.N. disclosed the full extent of the sexual abuse she had been subject to
from Maranger in his residence. Shortly thereafter on September 22, 2015, Detective
Frisch applied for a warrant to search Maranger’s residence where several instances of
sexual abuse were alleged to have occurred. In light of the ongoing nature of the sexual
abuse committed by Maranger against J.C.F.N., the various types of abuse that occurred,
and the fact that less than four months passed between the occurrence of the offenses
and the issuance of the search warrant, we cannot find that the information contained in
the affidavit was stale.
{¶ 40} Lastly, Maranger argues that the search warrant issued for his residence on
September 22, 2015, lacks particularity, and only contains broad categories of the
materials to be seized.
{¶ 41} Under the Fourth Amendment to the United States Constitution, no warrants
shall issue except those “ * * * particularly describing * * * the things to be seized.”
Section 14, Article I of the Ohio Constitution is nearly identical to the Fourth Amendment
in its language, and “its protections are coextensive with its federal counterpart.” State v.
Kinney, 83 Ohio St. 3d 85, 87, 698 N.E.2d 49 (1998) (citation omitted); State v. Hale, 2d
Dist. Montgomery No. 23582, 2010-Ohio-2389, ¶ 42.
{¶ 42} “In search and seizure cases where a warrant is involved, the requisite
specificity necessary therein usually varies with the nature of the items to be seized.
Where, as here, the items are evidence or instrumentalities of a crime, it appears that the
key inquiry is whether the warrants could reasonably have described the items more
precisely than they did.” State v. Benner, 40 Ohio St. 3d 301, 307, 533 N.E.2d 701 (1988),
citing LaFave, Search and Seizure: A Treatise on the Fourth Amendment 104–105,
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Section 4.6(d) (1978), and abrogated on other grounds by Horton v. California, 496 U.S.
128, 110 S. Ct. 2301, 110 L. Ed. 2d 112 (1990). Catchall provisions of warrants also “ ‘must
be read in conjunction with the list of particularly described items which preceded it
pertaining to the crimes alleged.’ ” State v. Dillard, 173 Ohio App. 3d 373, 2007–Ohio–
5651, 878 N.E.2d 694, at ¶ 43 (citation omitted).
{¶ 43} In the instant case, the search warrant indicates that probable cause exists
to believe that the following offenses occurred in Dane County, Wisconsin, to wit: “First
Degree Sexual Assault of a Child, Engaging in Repeated Acts of Sexual Assault of the
Same Child, Causing a Child to View or Listen to Sexual Activity, [and] Exposing a Child
to Harmful Material committed in violation of Section(s) 943.32(1)(a), 948.205(1)(a), [and]
948.11(1) of the Wisconsin Statutes ***.”
{¶ 44} The search warrant further states that the items to be seized from
Maranger’s residence are the following:
[1] Any and all ropes that could be used to restrain an individual.
[2] Any and all pornographic material including but not limited to DVDs, CDs,
photographs, and periodicals.
[3] Any and all devices or products of a sexual nature, including but not
limited to sex toys, costumes, and games[.]
[4] Any and all computers, cellphones, televisions that can connect to the
internet, gaming systems that can connect to the internet, cameras and the
contents of within the internal memory of the computer, phone, televisions,
gaming system and cameras in question including but not limited to
photographs, internet/website search history, contained within the internal
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memory of the electronics in question.
[5] Also, documents tending to identify the occupant in control of said
premises and vehicles, including but not limited to, lease agreements, utility
bills, records of financial transactions, vehicle repair bills, personal
correspondence, photographs, keys, driver’s license, registration and title
information.
[6] Any writings, journals, or any other notations which may indicate
addresses or names of individuals residing in or near the Lake Mills, WI
area.
{¶ 45} “Not all broad and generic descriptions of things to be seized are invalid
under the Fourth Amendment. A broad and generic description is valid if it ‘is as specific
as circumstances and nature of the activity under investigation permit’ and enables the
searchers to identify what they are authorized to seize.” Hale at ¶ 71, citing State v.
Armstead, 9th Dist. Medina No. 06CA0050–M, 2007–Ohio–1898, at ¶ 10.
{¶ 46} Upon review, we conclude that the warrant to search Maranger’s residence
was neither overbroad nor lacked specificity regarding the items to be seized as they
related to the child sex offenses for which he was under investigation in Wisconsin, as
well as the sexually violent predator specifications in Ohio. The search warrant identified
ropes that could be used to restrain an individual (based upon J.C.F.N.’s disclosure that
Maranger tied her to a chair with ropes and forced her to watch him have sex with an
adult female in his bedroom). The search warrant also described “all pornographic
material including but not limited to DVDs, CDs, photographs, and periodicals” (based
upon Y.N.’s disclosure that she observed Maranger viewing child pornography on the
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computer shared by everyone in the house, and more importantly, J.C.F.N.’s disclosure
that Maranger made her watch pornography on the television and the computer located
in the residence). The search also specifically identified “all devices or products of a
sexual nature, including but not limited to sex toys, costumes, and games” (based upon
J.C.F.N.’s disclosure that Maranger hid a box of toys, presumably sexual in nature, in the
rafters in his garage). Finally, the search warrant described “[a]ny writings, journals, or
any other notations which may indicate addresses or names of individuals residing in or
near the Lake Mills, WI area” (based upon J.C.F.N.’s disclosure that Maranger
transported her to a residence in the Lake Mills area and forced her to watch two
unidentified adults engage in sexual relations).
{¶ 47} Under the circumstances, the search warrant could not reasonably have
described the items more precisely. The search was limited to items related to the
specified offenses, which were related solely to the child sex offenses for which he was
under investigation in Wisconsin, as well as the sexually violent predator specifications in
Ohio. The warrant did not authorize intrusion into unrelated matters. Therefore, we
conclude that the warrant issued on September 22, 2015, to search Maranger’s residence
is sufficiently particular.
C. Warrant Issued on November 10, 2015 to Search Maranger’s Pickup Truck
{¶ 48} Here, Maranger argues that the warrant authorizing the search of his pickup
truck was not supported by probable cause, there was no connection to Maranger’s truck
and the crimes he committed in Ohio, it contained stale information, and it was overbroad.
We note that Detective Frisch included most, if not all, of the same information in the
affidavit for the search warrant of Maranger’s truck as he did in the affidavit for the search
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warrant for Maranger’s residence.
{¶ 49} In the instant case, J.C.F.N. disclosed that Maranger sexually assaulted her
multiple times in his truck. J.C.F.N. also disclosed that Maranger had transported her in
his truck to nearby locations in order to force her to watch while unidentified adults
engaged in sexual activity. The pickup truck was observed by deputies from the Dane
County Sheriff’s Office in the driveway when they executed the search warrant for his
residence on September 23, 2015. The truck was found to be registered to Maranger.
All of this information was included by Detective Frisch in his affidavit in support of the
issuance of the warrant to search Maranger’s truck. Upon review, we agree with the trial
court that the information included by Detective Frisch in the search warrant provided a
“fair probability that contraband or evidence of a crime” would be discovered in
Maranger’s truck.
{¶ 50} As to staleness, although the multiple instances of sexual abuse in
Maranger’s truck occurred between June and early August of 2015, J.C.F.N. did not
disclose the abuse to Y.N. until August 26, 2015. Furthermore, it was not until the
forensic interview conducted on September 9, 2015, that J.C.F.N. disclosed the full extent
of the sexual abuse she had been subject to from Maranger in his truck. The record
establishes that Detective Frisch applied for the warrant to search Maranger’s truck on
November 10, 2015. In light of the repeated nature of the sexual abuse committed by
Maranger against J.C.F.N., the various types of abuse that occurred, and the fact only
four months passed between the occurrence of the offenses and the issuance of the truck
search warrant, we cannot find that the information contained in the affidavit was stale.
{¶ 51} Furthermore, the evidence obtained from the search warrant issued and
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executed in Wisconsin is admissible in Maranger’s Ohio case because it can be used to
support his convictions for the sexually violent predator specifications. As previously
stated, pursuant to R.C. 2971.01(H)(2)(f), evidence of sexually violent offenses committed
against J.C.F.N. in Wisconsin by Maranger in his truck are clearly relevant to his
conviction for the sexually violent predator specifications with which he was charged in
Ohio. Id.
{¶ 52} Lastly, we conclude that the warrant to search Maranger’s truck was neither
overbroad nor lacked specificity regarding the evidence to be seized as they related to
the child sex offenses for which he was under investigation in Wisconsin, as well as the
sexually violent predator specifications in Ohio. The search warrant could not
reasonably have described the evidence more precisely, and the search was limited to
evidence related to the specified offenses which occurred in his truck. Therefore, we
conclude that the warrant issued on November 10, 2015, to search Maranger’s truck is
sufficiently particular.
D. Warrant Issued on November 12, 2015, to Search Maranger’s 3-inch x 5-inch
Ring Binder
{¶ 53} Maranger argues that the warrant authorizing the search of his 3 x 5 binder
was not supported by probable cause, there was no connection to the binder and the
crimes he committed in Ohio, it contained stale information, and it was overbroad. Again,
we note that Detective Frisch included most, if not all, of the same information in the
affidavit for the search warrant of Maranger’s binder as he did in the affidavit for the search
warrant for Maranger’s residence and his truck.
{¶ 54} In the instant case, the record establishes that upon execution of the search
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warrant, the items obtained from the binder included fifteen scraps of paper with names
and phone numbers written on them, as well as thirteen additional pages labeled A
through Z containing names, numbers, and addresses written on the front and back of
some of the pages. It is undisputed that although the trial court overruled Maranger’s
motion to suppress as it related to the 3 x 5 binder, none of the physical evidence itself
from the binder was introduced at his trial for the two sexually violent predator
specifications.
{¶ 55} In State v. Richardson, 2d Dist. Greene No. 08CA0077, 2009-Ohio-6018,
we stated that the “Defendant's reasonable expectation of privacy in the premises
notwithstanding, if his conviction was not based on any evidence police illegally seized
from his home, any invalidity in the warrant is moot, and any error in denying Defendant's
motion to suppress evidence that was seized was harmless.” Id. at ¶ 13. Therefore,
because Maranger’s convictions for the specifications was not based upon any of the
evidence seized from his binder, any alleged invalidity in the warrant is moot.
Accordingly, any error relating to the trial court’s denial of Maranger’s motion to suppress
evidence taken from the binder is moot, and need not be addressed. Id.
E. Warrant Issued on May 4, 2016, to Search Maranger’s LG Cellphone
{¶ 56} In this section, Maranger argues that the warrant authorizing the search of
his LG cellphone was not supported by probable cause, there was no connection to the
cellphone and the crimes he committed in Ohio, it contained stale information, and it was
overbroad. Again, we note that Detective Frisch included most, if not all, of the same
information in the affidavit for the search warrant of Maranger’s cellphone as he did in the
affidavit for the search warrant for Maranger’s residence and his truck.
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{¶ 57} The record establishes that on May 4, 2016, Detective Sink applied for a
search warrant for Maranger’s cellphone that was taken from him when he was arrested
in Butler Township on August 7, 2015. Thereafter, Detective Sink executed the search
warrant and took possession of the cellphone, which he immediately turned over to
Detective Patty from Wisconsin. Upon returning to Wisconsin, Detective Patty testified
that she obtained another warrant to search the contents of the cellphone. However, at
the time of the suppression hearing on August 25, 2016, the Wisconsin laboratory where
the cellphone had been sent had not yet been processed and its contents searched.
{¶ 58} It is undisputed that none of the contents of Maranger’s cellphone was
introduced at his bench trial for the specifications. Significantly, it is unknown if any
evidence, relevant or otherwise was removed from the cellphone. Accordingly, it is clear
from the record that Maranger’s convictions for the sexually violent predator specifications
were not in any way based upon the evidence, if any, seized from his cellphone.
Therefore, any invalidity in the warrant issued to Detective Sink to take possession of the
cellphone is moot, and any error in denying Maranger’s motion to suppress is harmless.
Richardson at ¶ 13.
F. Statements Made by Maranger to Detective Patty and Wisconsin Parole
Officers
{¶ 59} Here, Maranger argues that the trial court erred when it overruled his motion
to suppress as it related to statements that he made at separate times to Detective Patty
and his parole officers in Wisconsin.
Det. Patty
{¶ 60} During the bench trial, Detective Patty testified that when she traveled to
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Ohio on May 4, 2016, she attempted to interview Maranger and obtain a statement from
him regarding any offenses he committed in Wisconsin. At the time, Maranger was still
in the custody of the Montgomery County Sheriff awaiting trial for the offenses committed
in Butler Township on August 7, 2015. Detective Patty’s entire interview with Maranger
was recorded on audio and video.
{¶ 61} At the beginning of the interview, Detective Patty reviewed Maranger’s
constitutional rights with him. Thereafter, Detective Patty asked Maranger several
questions regarding offenses he allegedly committed in Wisconsin. It is undisputed,
however, that Maranger made no statements or admissions that were used against him
at trial. Thus, Maranger’s convictions for the sexually violent predator specifications
were not in any way based upon any statements he made to Detective Patty during the
interview at the Montgomery County Jail on May 4, 2016. Accordingly, any issues
regarding the propriety of Detective Patty’s interview with Maranger are moot, and any
error in denying Maranger’s motion to suppress his statements is harmless. See
Richardson at ¶ 13.
Parole Officers
{¶ 62} Next, Maranger contends that the trial court erred when it overruled his
motion to suppress statements he made to his Wisconsin parole officers in August of
2004 because he alleges that they told him that anything he told them would not be used
against him in any court proceeding.
{¶ 63} While under the supervision of the Wisconsin Department of Corrections,
Maranger provided his parole officers with several written statements during court ordered
sex offender treatment stemming from an earlier conviction and sentence. As a parolee
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under supervision, Maranger was required to provide true and correct information
regarding any violations he may have committed during his treatment. While on
supervision in Wisconsin, Maranger provided written statements wherein he admitted
having sexual intercourse with C.M. and E.L., having sex with a prostitute, and sending
sexually explicit material to another sex offender in 2001. Maranger also made oral
statements to his Wisconsin parole officer, Christopher Nolet, regarding the information
he provided in the written statements. Nolet testified that Maranger made the
incriminating oral statements prior to providing his written statements. At the top of the
statements, it states that any failure to be truthful and accurate is a violation for which his
parole could be revoked. The forms also state that the information could not be used
against him in criminal proceedings. Nolet testified that while Maranger’s parole was
revoked because of his supervision violations, he was never charged with any additional
criminal offenses based upon his admissions in the written statements.
{¶ 64} “The right to [Miranda] warnings is grounded in the Fifth Amendment's
prohibition against compelled self-incrimination.” State v. Strozier, 172 Ohio App. 3d 780,
2007-Ohio-4575, 876 N.E.2d 1304, ¶ 16 (2d Dist.), citing Moran v. Burbine, 475 U.S. 412,
420, 106 S. Ct. 1135, 89 L. Ed. 2d 410 (1986). “The procedural safeguards prescribed by
Miranda apply only when persons are subjected to ‘custodial interrogation.’ ” State v.
Thomas, 2d Dist. Montgomery No. 20643, 2005-Ohio-3064, ¶ 27, citing Miranda v.
Arizona, 384 U.S. 436, 444, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
{¶ 65} Miranda defined custodial interrogation as “questioning initiated by law
enforcement officers after a person has been taken into custody or otherwise deprived of
his freedom of action in any significant way.” Miranda at 444, 86 S. Ct. 1602, 16 L.Ed.2d
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694. “[T]he ultimate inquiry is simply whether there [was] a ‘formal arrest or restraint on
freedom of movement’ of the degree associated with a formal arrest.” California v.
Beheler, 463 U.S. 1121, 1125, 103 S. Ct. 3517, 77 L. Ed. 2d 1275 (1983), citing Oregon v.
Mathiason, 429 U.S. 492, 495, 97 S. Ct. 711, 50 L. Ed. 2d 714 (1977).
{¶ 66} “In order to determine whether a person is in custody for purposes of
receiving Miranda warnings, courts must first inquire into the circumstances surrounding
the questioning and, second, given those circumstances, determine whether a
reasonable person would have felt that he or she was not at liberty to terminate the
interview and leave.” State v. Hoffner, 102 Ohio St. 3d 358, 2004-Ohio-3430, 811 N.E.2d
48, ¶ 27, citing Thompson v. Keohane, 516 U.S. 99, 112, 116 S. Ct. 457, 133 L. Ed. 2d 383
(1995). Therefore, “the test for custody is an objective test.” State v. Chenoweth, 2d Dist.
Miami No. 2010 CA 14, 2011-Ohio-1276, ¶ 8, citing California v. Beheler, 463 U.S. 1121,
1125, 103 S. Ct. 3517, 77 L. Ed. 2d 1275 (1983). “The subjective views of the interviewing
officer and the suspect are immaterial to the determination of whether a custodial
interrogation was conducted.” (Citations omitted.) State v. Earnest, 2d Dist. Montgomery
No. 26646, 2015-Ohio-3913, ¶ 22. Accord State v. Gray, 2d Dist. Montgomery No. 26139,
2016-Ohio-1419, ¶ 74.
{¶ 67} In the instant case, we agree with the trial court and find that because
Maranger’s written and oral statements were obtained as a result of and during his sex
offender treatment, they were not the result of a custodial interrogation. Therefore, it
was not necessary for Nolet or any of the other parole officers to advise Maranger of his
Miranda rights. Although his parole was ultimately revoked in Wisconsin for the
violations, Maranger was not charged with any additional crimes in Wisconsin based upon
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the admissions he made during the sex offender treatment.
{¶ 68} However, even if the trial court erred when it overruled Maranger’s motion
to suppress as it related to his written statements, we conclude that error did not affect
the outcome of the trial. A conviction will not be reversed when other evidence adduced
at a defendant's trial is “so overwhelming, and the prejudicial effect of the [subject
statement] is so insignificant by comparison, that it is clear beyond a reasonable doubt
that the improper use of the admission was harmless error.” State v. Moritz, 63 Ohio St. 2d
150, 156, 407 N.E.2d 1268 (1980), citing Schneble v. Florida, 405 U.S. 427, 430, 92 S. Ct.
1056, 31 L. Ed. 2d 340 (1972).
{¶ 69} In finding Maranger guilty of both sexually violent predator specifications,
the trial court stated that the State had proven beyond a reasonable doubt that Maranger
had “been convicted two or more times in separate criminal actions of a sexually-oriented
offense or child-victim oriented offense.” The trial court also found that Maranger had a
documented history dating back to his childhood in which he exhibited sexually deviant
behavior. The trial court found that the State had adduced evidence which established
Maranger chronically commits offenses with a sexual motivation. Maranger was further
found to be in possession of over 200 photos depicting child pornography stored in his
computer. Accordingly, we find that even if the admission of Maranger's written
statements was error, it was harmless and did not ultimately affect the outcome of the
trial.
G. Warrant Issued on November 12, 2015, to Search Maranger’s Desktop
Computer
{¶ 70} In his final argument, Maranger argues that the trial court erred when it
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overruled his motion to suppress as it related to the search of his computer in which
approximately 200 photographs of child pornography were discovered. Specifically,
Maranger argues that the State failed to establish a nexus between the offenses
committed in Ohio and the computer, the search warrant was overbroad and lacked the
required specificity, the chain of evidence regarding the computer was tainted by the
police, and the information on the computer was stale.
{¶ 71} First, we note that the evidence obtained from the search warrant issued
and executed in Wisconsin to search Maranger’s computer is relevant in his Ohio case
because it can be used to support his convictions for the sexually violent predator
specifications. Here, the trial court found Maranger guilty of the sexually violent predator
specification as set forth in R.C. 2971.01(H)(1), which defines a “sexually violent predator”
as “a person who, on or after January 1, 1997, commits a sexually violent offense and is
likely to engage in the future in one or more sexually violent offenses.” Pursuant to R.C.
2971.01(H)(2)(f), evidence consisting of images of child pornography found in his
computer is clearly relevant to his conviction for the sexually violent predator
specifications with which he was charged in Ohio. Id.
{¶ 72} Furthermore, we find that the search warrant was not overbroad.
Specifically, the search warrant authorized the police to search for the following:
[A]ny and all files on the computers or external media drives as described
herein that may contain any of the following: images of individuals under the
age of 18 that may be engaged in sexual activity or in various stages of
undress, including but not limited to images, movies or other graphics,
including images of J.C.F.N., a juvenile under the age of 18; communication
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files, including but not limited to chat logs, e-mail, text messages and
internet search history since June 2015; any reference to online storage
accounts[.]
{¶ 73} In his affidavit in support of the search warrant, Detective Frisch stated that
based upon his training and experience, “images of pornography, child pornography as
well as any general digital content can be accessed and saved on many kinds of devices,”
including computers. Detective Frisch further stated that “individuals who sexually
molest children may collect child pornography, which is commonly viewed, downloaded
and traded online.” Additionally, on two separate occasions, Y.N. stated that she
observed Maranger viewing child pornography on the computer shared by everyone in
the house. J.C.F.N. also disclosed that Maranger made her watch child pornography on
the computer located in the residence. Moreover, the warrant only authorized the search
of “chat logs, e-mail, text messages and internet search history since June 2015” when
J.C.F.N. came to live in Maranger’s home full-time. Therefore, we conclude that the
warrant to search Maranger’s computer was neither overbroad nor lacked specificity
regarding the items to be seized as they related to the child sex offenses for which he
was under investigation in Wisconsin, as well as the sexually violent predator
specifications in Ohio.
{¶ 74} Next, Maranger argues that the evidence seized from the computer should
have been suppressed because the chain of evidence was broken when Detective Frisch,
after retrieving it from the property room, placed the computer in his private office for three
days before it was transferred to the Wisconsin State Crime Lab to be processed.
“The State has the burden of establishing the chain of custody of a specific
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piece of evidence. State v. Barzacchini (1994), 96 Ohio App. 3d 440, 458,
645 N.E.2d 137. ‘The requirement of authentication or identification as a
condition precedent to admissibility is satisfied by evidence sufficient to
support a finding that the matter in question is what its proponent claims.’
Evid.R. 901(A). In order to meet its burden in establishing the chain of
evidence, ‘the state need only establish that it is reasonably certain that
substitution, alteration, or tampering did not occur.’ State v. Qualls (June 6,
1997), Clark App. No. 96 CA 68 [1997 WL 311634, *5]. Breaks in the chain
of custody go to the weight afforded the evidence-not the admissibility of
the evidence. State v. Jones (Mar. 31, 2000), Miami App. No. 99 CA 38
[2000 WL 331793, *2].” Rajchel, supra, at ¶ 21.
State v. Griffin, 2d Dist. Montgomery No. 20681, 2005-Ohio-3698, ¶ 56, citing State v.
Rajchel, 2d Dist. Montgomery No. 19633, 2003-Ohio-3975, ¶ 21.
{¶ 75} Detective Frisch testified that the computer was removed from Maranger’s
residence on August 10, 2015, and taken to the property room on the same day. As
previously stated, Detective Frisch obtained a search warrant for Maranger’s computer
on November 12, 2015. Thereafter, on Friday, November 13, 2015, Detective Frisch
retrieved the computer from the property room and placed it in his locked private office
until he could schedule a time to submit it to the crime lab to be processed. Detective
Frisch testified that he was not able to schedule a time to drop off the computer at the
crime lab until November 17, 2015. Detective Frisch testified that he kept his office
locked when he was not there. The crime lab kept the computer from November 17,
2015, until June 17, 2016, when it was returned to Detective Frisch. In our judgment,
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Maranger’s computer and its contents were properly secured by the State, a chain of
custody was established, and the trial court was correct to uphold the warrant and
evaluate the weight of evidence to give to the computer images.
{¶ 76} Lastly, Maranger argues that the information in the search warrant for the
computer was stale. The record establishes that J.C.F.N. moved into Maranger’s
residence in June of 2015. On August 7, 2015, Maranger was arrested in Ohio for raping
J.C.F.N. On August 10, 2015, Y.N. informed Wisconsin Detectives Frisch and Gardner
that on two occasions she had observed Maranger viewing child pornography on his
computer in the residence that they shared. The computer, when initially removed from
Maranger’s residence by Detective Gardner, was not searched. Thereafter, on August
26, 2015, Y.N. informed Detective Frisch that J.C.F.N. had disclosed that Maranger had
sexually abused her in Wisconsin as well as Ohio. At a forensic interview on September
9, 2015, J.C.F.N. disclosed multiple instances of sexual abuse committed by Maranger
at his residence which included direct reference to computer images.
{¶ 77} On September 22, 2015, Detective Frisch applied for a warrant to search
Maranger’s residence where sexual abuse was alleged to have occurred. Specifically,
J.C.F.N. disclosed that Maranger made her view pornography on the television and the
computer. Thereafter, on November 12, 2015, Detective Frisch applied for a warrant to
specifically search the contents of Maranger’s already seized computer. Shortly
thereafter on November 17, 2015, Detective Frisch turned the computer over to the crime
lab so that it could be analyzed and processed. The fact that the crime lab did not return
the computer to Detective Frisch until June 17, 2016, has no bearing upon whether the
information in the affidavit for the search warrant was stale. Based upon the ongoing
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nature of the sexual abuse committed by Maranger against J.C.F.N. and the fact that less
than four months passed between the occurrence of the offenses and the issuance of the
search warrant, we cannot find that the information contained in the affidavit was stale.
{¶ 78} Thus, we find that the trial court did not err when it overruled Maranger’s
motion to suppress in its entirety.
{¶ 79} Maranger’s sole assignment of error is overruled.
{¶ 80} Maranger’s sole assignment of error having been overruled, the judgment
of the trial court is affirmed.
.............
HALL, J., and TUCKER, J. concur.
Copies mailed to:
Heather Jans
Robert Brenner
Hon. Dennis J. Adkins