State v. Mattocks

156 N.E.3d 946

2020 Ohio 3858

STATE of Ohio, Plaintiff-Appellee,

v.Michael MATTOCKS, Defendant-Appellant.

NO. 2020-T-0002

Court of Appeals of Ohio, Eleventh District, Trumbull County.

July 27, 2020

Dennis Watkins, Trumbull County Prosecutor, and Ashleigh Musick, Assistant Prosecutor, Administration Building, Fourth Floor, 160 High Street, N.W., Warren, OH 44481, (For Plaintiff-Appellee).

Rhys B. Cartwright-Jones, 42 North Phelps Street, Youngstown, OH 44503, (For Defendant-Appellant).

MATT LYNCH, J.

{¶1} Defendant-appellant, Michael Mattocks, appeals multiple convictions of Illegal Use of a Minor in Nudity-Oriented Material or Performance and Pandering Sexually Oriented Matter Involving a Minor following a bench trial in the Trumbull County Court of Common Pleas. For the following reasons, we affirm the decision of the court below.

{¶2} On December 15, 2017, the Trumbull County Grand Jury returned an Indictment against Mattocks, charging him with eight counts of Illegal Use of a Minor in Nudity-Oriented Material or Performance (Counts 1-2 and 5-10), felonies of the second degree in violation of R.C. 2907.323(A)(1) and (B), and two counts of Pandering Sexually Oriented Matter Involving a Minor (Counts 3-4), felonies of the second degree in violation of R.C. 2907.322(A)(1) and (C). Mattocks was arraigned and entered pleas of not guilty.

{¶3} On September 23, 2019, trial on the charges was conducted to the court. The following witnesses testified on behalf of the State:

{¶4} Michael Shuster, a Liberty Township Police Officer (now Sergeant), was dispatched to Liberty High School on January 17, 2017, regarding an incident involving Mattocks, a substitute teacher at the school. Two students had accessed Mattocks' personal computer without his consent and discovered nude photographs of Mattocks as well as photographs of unknown females.

{¶5} Ray Buhala, a Liberty Township Detective Sergeant (now Captain), was

summoned to the High School by Officer Shuster. Mattocks voluntarily surrendered his iPhone 7 and provided the passcode to Buhala. While examining the contents of the phone, Buhala found photographs of a female he recognized as being high school age. Subsequently, he identified the female as a student at Liberty High School, S.B.

{¶6} On January 19, 2017, Detective Buhala executed a search warrant at Mattocks' residence on Stonington Drive. Among the items seized were an iPod and a Mac Tower/iMac.

{¶7} S.B. testified that, in the 2016-2017 academic year, she was a sophomore at Liberty High School and sixteen years old. Mattocks was her substitute teacher in a credit recovery class. Beginning in November 2016, Mattocks and S.B. began to text each other through Facebook Messenger. In January 2017, at Mattocks' suggestion, they began using the Wickr instant messaging app to communicate.

{¶8} Mattocks requested that S.B. send him nude images of herself and she complied. S.B. received notifications that Mattocks screenshotted the images. Six of the images, recovered from Mattocks' iPhone, were introduced as evidence.

{¶9} S.B. testified that she would "always" mention her age in class and "would talk about it in class to everybody."

{¶10} Brenda Golec, a Special Agent with the Ohio Bureau of Criminal Investigation, was contacted by Detective Buhala to assist on the Mattocks case and participated in the search of Mattocks' residence on January 19. She interviewed Mattocks. During the course of the interview, Mattocks admitted to requesting and receiving from S.B. nude images and to knowing her age. He also admitted that the iMac was new when he purchased it.

{¶11} Erica Moore, a Special Agent with the Ohio Bureau of Criminal Investigation, conducted a forensic examination of Mattocks' electronic devices. Moore was able to extract six images of child pornography from the iMac's hard drive by the process of "carving." Moore described the process thus:

These [images] were all pulled out of unallocated space on the hard disk drive so unallocated space could be anything, like maybe there was a picture that was on the screen and it was deleted or maybe it was just a picture that was never saved. Like if you went to like weather.com and you saw a picture of the state of Ohio, like you don't necessarily have to save that picture on your computer but you would still have that, you know, state of Ohio graphic somewhere floating around on your computer and you might be able to recover that. * * * It's not necessarily deleted but it's pictures or anything really that was never allocated so until your computer overwrites that block, you can still recover anything. So you might delete a file, like you might delete a picture, and up until -- it just tells the computer hey, this space is available to save something onto, and until you overwrite that space with something new, all of that stuff in unallocated space is still able to be recovered.

{¶12} A consequence of recovering images by carving is that there is no metadata associated with the images, i.e., there was no information as to when or how the images came to be stored in the hard drive.

{¶13} Agent Moore also extracted a history of internet searches conducted on the iMac. Search terms included "incest preteen," "pedo" (a common abbreviation for pedophile or pedophilia), and "pthc" (a common abbreviation for preteen hardcore). These searches occurred on December 31, 2016. Other searches were conducted using the terms "remove all metadata" and "how to completely erase all data on my iPhone 7 from my Mac desktop." These searches occurred on January 18, 2017. Moore found evidence that files were downloaded on the Mac, including video files with titles such as "15yo," "7yo," and "12yo." On January 1, 2017, a file began downloading with the title "Lolitas 13yo sex ls island hardcore.zip."

{¶14} There was no evidence directly linking the images of child pornography with either the internet searches or the downloads.

{¶15} On November 13, 2019, the trial court found Mattocks guilty of all counts as charged in the Indictment.

{¶16} On December 18, 2019, the trial court sentenced Mattocks to serve two years in prison for each count to be served concurrently to each other and advised him of his duty to register as a Tier II Sex Offender.

{¶17} On January 13, 2020, Mattocks filed a Notice of Appeal. On appeal, he raises the following assignments of error:

{¶18} "[1.] The trial court erred in convicting Mattocks of all counts of the indictment for lack of sufficient evidence, contrary to U.S. Const. Amend VI and XIV."

{¶19} "[2.] The indictment for all counts relating to the alleged victim, S.B., is fatally defective for failure to include a mens rea in the indictment."

{¶20} "A claim challenging the sufficiency of the evidence invokes a due-process concern and raises the question whether the evidence is legally sufficient to support the jury verdict as a matter of law." State v. Clinton , 153 Ohio St.3d 422, 2017-Ohio-9423, 108 N.E.3d 1, ¶ 165 ; Crim.R. 29(A) ("[t]he court * * * shall order the entry of a judgment of acquittal * * * if the evidence is insufficient to sustain a conviction").

An appellate court's function when reviewing the sufficiency of the evidence to support a criminal conviction is to examine the evidence admitted at trial to determine whether such evidence, if believed, would convince the average mind of the defendant's guilt beyond a reasonable doubt. The 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 , 61 Ohio St.3d 259, 574 N.E.2d 492 (1991), paragraph two of the syllabus, following Jackson v. Virginia , 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). "Evaluation of the witnesses' credibility is not relevant to a sufficiency analysis." State v. Beasley , 153 Ohio St.3d 497, 2018-Ohio-493, 108 N.E.3d 1028, ¶ 207.

{¶21} Counts 1, 2, 5, and 6 (Illegal Use of a Minor in Nudity-Oriented Material or Performance) and Counts 3 and 4 (Pandering Sexually Oriented Matter Involving a Minor) were based on the carved images recovered from Mattocks' iMac. These charges required the State to prove that Mattocks transferred images of minors in a state of nudity and reproduced images of minors engaged in sexual activity respectively. R.C. 2907.323(A)(1) and 2907.322(A)(1).

{¶22} Mattocks contends that carved images, i.e., "computer files that lack identifying data as to, for example, date of download, are insufficient to support convictions for offenses involving possession of contraband computer files." Appellant's brief at 5. Without accompanying metadata, the State cannot prove "the timing, course, user, or any other information concerning the images" which, inter alia, "causes the State's cause to fail under the six-year statute of limitations [ R.C. 2901.13 ]." Appellant's brief at 5-6.

{¶23} The existence of contraband images in the hard drive's unallocated space may support convictions for Illegal Use/Pandering by the same principles of constructive possession applied to cases involving the possession of physical evidence. "Constructive possession exists when an individual exercises dominion and control over an object," and "the person [is] conscious of the presence of the object." State v. Hankerson , 70 Ohio St.2d 87, 91, 434 N.E.2d 1362 (1982). "[C]onstructive possession of contraband may be proven solely by circumstantial evidence." (Citation omitted.) State v. Owens , 2018-Ohio-1334, 109 N.E.3d 588, ¶ 32 (11th Dist.) ; State v. Payne , 8th Dist. Cuyahoga No. 107825, 2019-Ohio-4158, 2019 WL 5079686, ¶ 68 ("constructive possession may be proved by circumstantial evidence alone").

{¶24} The evidence in the present case is sufficient to convince the average mind beyond a reasonable doubt that Mattocks transferred and reproduced images of child pornography. This conclusion does not rest exclusively on the...