State v. Paster ( 2014 )

[Cite as State v. Paster, 2014-Ohio-3231.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 100458
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
MICHAEL N. PASTER
DEFENDANT-APPELLANT
JUDGMENT:
CONVICTIONS AFFIRMED; SENTENCE REVERSED
AND REMANDED FOR RESENTENCING
Criminal Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CR-13-573090
BEFORE: Kilbane, J., Celebrezze, P.J., and E.A. Gallagher, J.
RELEASED AND JOURNALIZED: July 24, 2014
ATTORNEY FOR APPELLANT
John B. Gibbons
2000 Standard Building
1370 Ontario Street
Cleveland, Ohio 44113
ATTORNEYS FOR APPELLEE
Timothy J. McGinty
Cuyahoga County Prosecutor
Holly Welsh
Assistant County Prosecutor
The Justice Center - 8th Floor
1200 Ontario Street
Cleveland, Ohio 44113
MARY EILEEN KILBANE, J.:
{¶1} Defendant-appellant, Michael Paster (“Paster”), appeals his convictions and
sentence. For the reasons set forth below, we affirm his convictions, reverse his
sentence, and remand for resentencing.
{¶2} In April 2013, Paster was charged in a five-count indictment. Counts 1 and
2 charged him with importuning. Count 3 charged him with compelling prostitution.
Count 4 charged him with attempted unlawful conduct with a minor. Count 5 charged
him with possession of criminal tools.1 The charges arise from an online investigation
conducted by the Ohio Internet Crimes Against Children Task Force (“ICAC”), where
one of its officers posed online as a 15-year-old girl.
{¶3} The matter proceeded to a bench trial in July 2013, at which the following
evidence was adduced.
{¶4} On March 29, 2013, Beth Holmes (“Holmes”), an investigator with ICAC,
observed an ad posted on craigslist.com under the “casual encounters” section, titled
“Looking to have some A$$ fun-m4w-35[.]” Holmes responded to the ad using the
email address of her undercover profile, Janelle Bentley (“Bentley”). Holmes, posing as
Bentley, exchanged email addresses with Paster, who was later determined to be the
person who placed the craigslist ad. Holmes also exchanged cell phone numbers with
Paster. Holmes provided Paster an undercover cell phone number. The two of them
corresponded by text message from March 29, 2013 to April 2, 2013. During that time,
1Each of the counts carried a forfeiture specification.
Paster texted a picture of himself to Holmes, and Holmes, posing as Bentley, sent a
picture of herself manipulated to make her look younger. Paster made several requests
of Bentley to engage in various sexual acts. Holmes, posing as Bentley, texted Paster on
two occasions that she was 15 years old. Paster, who was 37 years old at the time, asked
Bentley to meet in person so that they can engage in sexual activity. He offered a “prize
of $100.” They arranged to meet on April 2, 2013, at a video store in Parma, Ohio and
then drive somewhere to have sex. When Paster arrived at the location, Holmes, posing
as Bentley, texted Paster, asking if he just pulled into the parking lot. Paster responded,
“yeah.” Officers then asked Paster to step out of his vehicle and arrested him. Officers
seized Paster’s cell phone and his wallet, which contained $18 and two condoms.
{¶5} Jeff Rice, a forensic examiner with ICAC, testified that he conducted an
exam of Paster’s cell phone and found text messages exchanged between Paster and
Holmes, posing as Bentley.
{¶6} A review of the trial transcript reveals that the court found Paster guilty of
both counts of importuning, attempted unlawful conduct with a minor, and possession of
criminal tools, all with corresponding forfeiture specifications, and not guilty of
compelling prostitution. The corresponding journal entry, however, states that the trial
court found Paster “not guilty of possessing criminal tools [R.C.] 2923.24(A) with
forfeiture specification(s) (2941.1417) as charged in Count(s) 5 of the indictment.”
{¶7} At sentencing, the trial court sentenced Paster on Counts 1 and 4.2 The
trial court merged Counts 1 and 2, and the state elected to proceed with sentencing on
Count 1. The trial court sentenced Paster to 12 months on Count 1 and 16 months on
Count 4, to be served consecutively for a total of 28 months in prison.
{¶8} Paster now appeals, raising the following three assignments of error for
review.
Assignment of Error One
The trial court committed plain error by imposing consecutive terms of
incarceration.
Assignment of Error Two
The trial court erred by failing to grant [Paster’s] motion for judgment of
acquittal pursuant to [Crim.R. 29(A)] on each count of the indictment.
Assignment of Error Three
The trial court erred by permitting the introduction of business records of
Craigslist, Facebook, and telephone records without the legally required
[authentication] of these records.
Sentence
{¶9} This court has addressed the standard of review used by appellate courts
when reviewing challenges to the imposition of consecutive sentences in State v. Venes,
2013-Ohio-1891, 992 N.E.2d 453 (8th Dist.). In Venes, we held that the standard of
2 The trial court did not impose a sentence on Count 5 at the sentencing
hearing or in the corresponding docket entry.
review set forth by the Ohio Supreme Court in State v. Kalish, 120 Ohio St.3d 23,
2008-Ohio-4912, 896 N.E.2d 124, was no longer valid. We stated:
In [Kalish], the supreme court considered the relevant standard of review in
the post-Foster era in which the findings necessary to impose consecutive
sentences under former R.C. 2929.14(E)(4) had been declared
unconstitutional. A plurality of the court held that R.C. 2953.08(G)(2) was
inapplicable because it expressly related to “findings” that had been
abrogated as unconstitutional. Instead, the plurality set forth the following
method of reviewing criminal sentences: (1) is the sentence contrary to
law and (2) if not, was it an abuse of discretion. Id. at ¶ 14-19.
Kalish, as is any plurality opinion, is of “questionable precedential value.”
See Kraly v. Vannewkirk, 69 Ohio St.3d 627, 633, 635 N.E.2d 323 (1994).
Nevertheless, panels of this court have found it persuasive, at least insofar
as it was applied to sentencing in the post-Foster era. See, e.g., State v.
Martinez, 8th Dist. [Cuyahoga] No. 96222, 2011-Ohio-5832, ¶ 6, fn. 1.
The post-Foster era ended with the enactment of H.B. 86 and the revival of
statutory findings necessary for imposing consecutive sentences under R.C.
2929.14(C)(4). By reviving the requirement for findings as a predicate for
imposing consecutives, the ground offered by Kalish for rejecting the
standard of review set forth in former R.C. 2953.08 — that it could not
stand as a standard of review for a statute that improperly required findings
of fact before imposing consecutive sentences — was nullified. With the
basis for the decision in Kalish no longer valid, and given that Kalish had
questionable precedential value in any event, we see no viable reasoning for
continuing to apply the standard of review used in that case. Henceforth,
we review consecutive sentences using the standard of review set forth in
R.C. 2953.08.
Venes at ¶ 8-10.
{¶10} R.C. 2953.08(G)(2) provides two bases for a reviewing court to overturn the
imposition of consecutive sentences: the sentence is “otherwise contrary to law,” or the
reviewing court clearly and convincingly finds that “the record does not support the
sentencing court’s findings” under R.C. 2929.14(C)(4).
{¶11} R.C. 2929.14(C)(4) now requires that a trial court engage in a three-step
analysis in order to impose consecutive sentences. First, the trial court must find that the
sentence is necessary to protect the public from future crime or to punish the offender.
Second, the trial court must find that consecutive sentences are not disproportionate to the
seriousness of the offender’s conduct and to the danger the offender poses to the public.
Third, the trial court must find that at least one of the following applies: (a) the offender
committed one or more of the multiple offenses while awaiting trial or sentencing, while
under a sanction imposed pursuant to R.C. 2929.16, 2929.17, or 2929.18, or while under
postrelease control for a prior offense; (b) at least two of the multiple offenses were
committed as part of one or more courses of conduct, and the harm caused by two or more
of the offenses was so great or unusual that no single prison term for any of the offenses
committed as part of any of the courses of conduct adequately reflects the seriousness of
the offender’s conduct; or (c) the offender’s history of criminal conduct demonstrates that
consecutive sentences are necessary to protect the public from future crime by the
offender. R.C. 2929.14(C)(4)(a)-(c).
{¶12} “In making these findings, a trial court is not required to use ‘talismanic
words,’ however, it must be clear from the record that the trial court actually made the
findings required by statute.” State v. Marton, 8th Dist. Cuyahoga No. 99253,
2013-Ohio-3430, citing Venes at ¶ 14, 17; State v. Goins, 8th Dist. Cuyahoga No. 98256,
2013-Ohio-263, ¶ 10.
{¶13} Paster contends that the trial court’s discussion was insufficient to satisfy the
findings under R.C. 2929.14(C)(4) when it imposed his sentence. While we
acknowledge that the trial court gave thorough consideration to the presentence
investigation report, letters from Paster’s ex-wife, girlfriend, and various family members,
and the contents of Paster’s texts, we agree with Paster that the trial court must make
separate and distinct findings when it imposes consecutive sentences. See Venes at ¶ 17.
{¶14} A review of the record in the instant case does not reflect that the trial court
conducted the appropriate analysis required under R.C. 2929.14(C) in sentencing Paster
to consecutive terms. The trial court made no reference or mention of the findings
necessary to support consecutive sentences. The term “consecutive” was not discussed
by the trial court until the court imposed the sentence. Therefore, the trial court erred in
imposing consecutive sentences without making the requisite findings.
{¶15} Accordingly, the first assignment of error is sustained.
Sufficiency of the Evidence
{¶16} In the second assignment of error, Paster challenges his convictions, arguing
that there was insufficient evidence to sustain them.
{¶17} The Ohio Supreme Court in State v. Diar, 120 Ohio St.3d 460,
2008-Ohio-6266, 900 N.E.2d 565, ¶ 113, explained the standard for sufficiency of the
evidence as follows:
Raising the question of whether the evidence is legally sufficient to support
the jury verdict as a matter of law invokes a due process concern. State v.
Thompkins (1997), 78 Ohio St.3d 380, 386, 1997-Ohio-52, 678 N.E.2d 541.
In reviewing such a challenge, “[t]he relevant inquiry is whether, after
viewing the evidence in a light most favorable to the prosecution, any
rational trier of fact could have found the essential elements of the crime
proven beyond a reasonable doubt.” State v. Jenks (1991), 61 Ohio St.3d
259, 574 N.E.2d 492, paragraph two of the syllabus, following Jackson v.
Virginia (1979), 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560.
Importuning
{¶18} Paster first challenges his importuning convictions in violation of R.C.
2907.07(D)(2), which provides that:
No person shall solicit another by means of a telecommunications device *
* * to engage in sexual activity with the offender when the offender is
eighteen years of age or older and * * * [t]he other person is a law
enforcement officer posing as a person who is thirteen years of age or older
but less than sixteen years of age, the offender believes that the other person
is thirteen years of age or older but less than sixteen years of age or is
reckless in that regard, and the offender is four or more years older than the
age the law enforcement officer assumes in posing as the person who is
thirteen years of age or older but less than sixteen years of age.
{¶19} Paster claims the evidence does not demonstrate that he solicited sexual
activity from a minor female. We disagree.
{¶20} In the instant case, the record demonstrates that Paster, who was 37 years
old at the time, sent multiple sexually explicit text messages to Bentley. Holmes, posing
as Bentley, texted Paster on two occasions that she was 15 years old, texted him that he
was twice her age, and made references that she was a virgin. Holmes testified that she
“received several text messages as to what [Paster] wanted to do, how [he] wanted to
engage in sexual activity with a 15-year-old.”
{¶21} When reviewing this evidence in a light most favorable to the state, we find
sufficient evidence to sustain his importuning convictions.
Attempted Unlawful Sexual Conduct with a Minor
{¶22} Paster next challenges his attempted unlawful sexual conduct with a minor
conviction, in violation of R.C. 2923.02(A) and 2907.04(A), which provide that:
No person, purposely or knowingly, and when purpose or knowledge is
sufficient culpability for the commission of an offense, shall engage in
conduct that, if successful, would constitute or result in the offense.
No person who is eighteen years of age or older shall engage in sexual
conduct with another, who is not the spouse of the offender, when the
offender knows the other person is thirteen years of age or older but less
than sixteen years of age, or the offender is reckless in that regard.
{¶23} Paster argues that his act of driving to the video store in Parma is
insufficient to demonstrate a “substantial step” to complete the offense of attempted
unlawful sexual conduct with a minor.
{¶24} In State v. Schaefer, 155 Ohio App.3d 448, 2003-Ohio-6538, 801 N.E.2d
872, ¶ 14 (2d Dist.), the Second Appellate District held that the defendant’s act of driving
to meet a person who he believed was a 14-year-old girl he had solicited over the internet
for the purpose of engaging in sexual activity was a substantial step in the commission of
the offense of unlawful sexual conduct with a minor, and that the act of driving to the
arranged meeting spot on the date and time planned was strongly corroborative of his
criminal purpose. See also State v. Tarbay, 157 Ohio App.3d 261, 2004-Ohio-2721, 810
N.E.2d 979 (1st Dist.); State v. Bonness, 8th Dist. Cuyahoga No. 96557, 2012-Ohio-474,
discretionary appeal not allowed, 132 Ohio St.3d 1482, 2012-Ohio-3334, 971 N.E.2d
960.
{¶25} Likewise, in the instant case, Paster’s act of driving to the video store, the
arranged meeting place, on the date that he had agreed to meet Bentley for the purpose of
engaging in the sexual activity that they had discussed in text messages is corroborative of
Paster’s specific intent to engage in sexual activity with a minor, and it thereby
constituted a substantial step in committing the offense of unlawful sexual conduct with a
minor.
{¶26} Accordingly, we find sufficient evidence to sustain Paster’s attempted
unlawful sexual conduct with a minor conviction.
Possession of Criminal Tools
{¶27} Lastly, within this assigned error, Paster argues that there was insufficient
evidence to sustain his possession of criminal tools conviction in violation of R.C.
2923.24(A). A review of the trial docket, however, reveals that the trial court found
Paster “not guilty of possessing criminal tools [R.C.] 2923.24(A) with forfeiture
specification(s) (2941.1417) as charged in Count(s) 5 of the indictment.” Furthermore,
the trial court’s sentencing entry only contains a sentence for Counts 1 and 4. It is well
settled that a court speaks through its journal entries. State v. Brooke, 113 Ohio St.3d
199, 2007-Ohio-1533, 863 N.E.2d 1024, ¶ 47, citing Kaine v. Marion Prison Warden, 88
Ohio St.3d 454, 2000-Ohio-381, 727 N.E.2d 907.
{¶28} The journal entries in the instant case state that Paster was found not guilty
of possession of criminal tools. A review of the record reveals that the state did not
object to the “not guilty” finding at the trial court, nor did the state file a cross-appeal
with this court, challenging the “not guilty” finding. Therefore, Paster’s sufficiency
argument regarding possession of criminal tools is moot.
{¶29} Accordingly, the second assignment of error is overruled.
Authentication of Records
{¶30} In the third assignment of error, Paster argues the trial court erred by
permitting the introduction of the craigslist ad, Facebook account printouts, and cell
phone records. He contends that these records are business records that were not
properly authenticated before they were admitted into evidence.
{¶31} We note that “‘[t]he admission or exclusion of relevant evidence rests within
the sound discretion of the trial court.’” State v. Pruitt, 8th Dist. Cuyahoga No. 98080,
2012-Ohio-5418, ¶ 10, quoting State v. Hamilton, 8th Dist. Cuyahoga No. 86520,
2006-Ohio-1949.
{¶32} Evid.R. 901 governs authentication and provides a liberal standard for the
authentication of telephone calls. Pruitt at ¶ 11, citing State v. Teague, 8th Dist.
Cuyahoga No. 90801, 2009-Ohio-129. Under Evid.R. 901(A), the requirement of
authentication for evidence to be admissible “is satisfied by evidence sufficient to support
a finding that the matter in question is what its proponent claims.” This court has stated:
Circumstantial evidence, as well as direct, may be used to show
authenticity. Moreover, the threshold standard for authenticating evidence
pursuant to Evid.R. 901(A) is low, and “does not require conclusive proof
of authenticity, but only sufficient foundational evidence for the trier of fact
to conclude that * * * [the evidence] is what its proponent claims it to be.”
(Citations omitted.) Pruitt at ¶ 11, quoting Teague.
{¶33} In the instant case, all of the documents were authenticated by direct
testimony of the individuals who generated them. Holmes testified that she printed the
craigslist ad and the Facebook accounts. Holmes also identified her own cell phone
records between herself and Paster. Rice testified that he generated a list of text
messages after analyzing Paster’s cell phone. Based on this direct testimony, we find
that the trial court did not abuse its discretion in admitting these documents into evidence.
{¶34} Therefore, the third assignment of error is overruled.
{¶35} Accordingly, we affirm Paster’s convictions, reverse his sentence, and
remand for a resentencing hearing.
It is ordered that appellee and appellant share the costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the common
pleas court to carry this judgment into execution. The defendant’s conviction having
been affirmed, any bail pending appeal is terminated.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of
the Rules of Appellate Procedure.
MARY EILEEN KILBANE, JUDGE
EILEEN A. GALLAGHER, J., CONCURS;
FRANK D. CELEBREZZE, JR., P.J., DISSENTS (SEE SEPARATE OPINION)
FRANK D. CELEBREZZE, JR., P.J., DISSENTING:
{¶36} I concur with the majority’s affirmance of appellant’s convictions, but
respectfully dissent from its position that the trial court did not conduct the appropriate
analysis required under R.C. 2929.14(C).
{¶37} As stated by the majority, R.C. 2929.14(C)(4) requires the trial court to
find that a consecutive sentence is “necessary to protect the public from future crime or to
punish the offender,” that consecutive sentences are “not disproportionate to the
seriousness of the offender’s conduct and to the danger the offender poses to the public,”
and the existence of one of the three statutory factors set forth in R.C.
2929.14(C)(4)(a)-(c), which are as follows: (a) the offender committed one or more of the
multiple offenses while awaiting trial or sentencing, while under a sanction imposed
pursuant to R.C. 2929.16, 2929.17, or 2929.18, or while under postrelease control for a
prior offense; (b) at least two of the multiple offenses were committed as part of one or
more courses of conduct, and the harm caused by two or more of the offenses was so
great or unusual that no single prison term for any of the offenses committed as part of
any of the courses of conduct adequately reflects the seriousness of the offender’s
conduct; or (c) the offender’s history of criminal conduct demonstrates that consecutive
sentences are necessary to protect the public from future crime by the offender.
{¶38} In the case at hand, the trial court stated the following with respect to
imposing consecutive sentences:
This court is running counts 1 and 2 3 consecutive because of the
seriousness of this crime, because to do otherwise would demean the
3 The trial court subsequently corrected its statement that it was running
seriousness of this offense, and because this court finds that the public does
need to be protected from you.
***
We will run them consecutive because one sentence alone would not protect
the public from this behavior and the seriousness would be seriously
demeaned otherwise.
{¶39} In my view, the trial court’s statements satisfied the mandates of R.C.
2929.14(C)(4). Although the trial court did not use the term “disproportionate,” it
emphasized (1) the need to protect the public from future crime, (2) that a consecutive
term was necessary give the seriousness of appellant’s conduct, and (3) that a single
prison term would not adequately reflect the seriousness of appellant’s conduct. I
believe these findings are all that the statute requires.
{¶40} Accordingly, I would overrule appellant’s first assignment of error and
affirm his sentence.
Counts 1 and 2 consecutively and clarified that because Counts 1 and 2 were allied
offenses, the court was running Counts 1 and 4 consecutively.