State v. Hadding

SUPREME COURT CASES

Laws-info.com » Cases » Ohio » 3rd District Court of Appeals » 2013 » State v. Hadding

State v. Hadding

State: Ohio

Court: Ohio Southern District Court

Docket No: 2013-Ohio-643

Case Date: 02/25/2013

Plaintiff: State

Defendant: Hadding

Preview:[Cite as State v. Hadding, 2013-Ohio-643.]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
AUGLAIZE COUNTY
STATE OF OHIO,
PLAINTIFF-APPELLEE,                              CASE NO.   2-12-14
v.
BEN L. HADDING,                                  O P I N I O N
DEFENDANT-APPELLANT.
Appeal from Auglaize County Common Pleas Court
Trial Court No. 2011-CR-169
Judgment Affirmed
Date of Decision:    February 25, 2013
APPEARANCES:
S. Mark Weller  for Appellant
R. Andrew Augsburger    for Appellee

Case No. 2-12-14
PRESTON, P.J.
{¶1} Defendant-appellant,  Ben  Hadding,  appeals  the  Auglaize  County
Court of Common Pleas’ sentence of nine years and eleven months imprisonment
following a jury verdict finding him guilty of four counts of pandering obscenity
involving a minor.   Hadding argues the trial court erred when it found his offenses
were not allied offenses of similar import.   For the following reasons, we affirm.
{¶2} The present case stems from an incident that occurred on September
17,  2011.                                                                              (Apr.  25,  2012 Tr. at  29-30).    Hadding’s eleven-year-old daughter,
C.H.,  called  law  enforcement  after  an  altercation  with  Hadding’s  girlfriend,
Angiela McClure.                                                                        (Id.).   When the officers arrived, C.H. told them McClure had
slapped  her.                                                                           (Id.).    C.H.  also  informed  the  officers  that  she  and  McClure’s
thirteen-year-old daughter  (at the time of the offense), S.M., had discovered a
video camera she alleged Hadding had hid in the bathroom to videotape them
coming out of the shower, and that the girls had caught him attempting to take
photographs  underneath  their  clothing  while  they were  sleeping.                   (Id.  at                                                                   31).
While searching the house, the officers discovered a camera and a camcorder in
Hadding’s closet, and a videotape in the nightstand next to his bed.   (Apr. 26, 2012
Tr. at  159-160).   The officers also obtained Hadding’s cell phone.                    (Id.).   The
nightstand videotape contained a recording of S.M. removing a towel and getting
dressed after taking a shower.                                                          (Apr. 25, 2012 Tr. at 53).   Hadding’s cell phone
- 2 -

Case No. 2-12-14
contained an image of fingers pulling underwear away from S.M., revealing her
vagina.   (Apr. 26, 2012 Tr. at 228).
{¶3} On November  17,  2011, the Auglaize County Grand Jury indicted
Hadding on four counts of pandering obscenity involving a minor.                        (Doc. No. 1).
Counts One and Three alleged Hadding had created obscene material involving a
minor in violation of R.C.  2907.321(A)(1), felonies of the second degree, and
Counts Two and Four alleged that Hadding possessed obscene material involving
a minor in violation of R.C. 2907.321(A)(5), felonies of the fourth degree.   (Id.).
{¶4} The trial court arraigned Hadding on November 22, 2011.                            (Doc. No.
11).   Hadding pled not guilty to the charges.   (Id.).
{¶5} On April 25-27, 2012, the trial court held a jury trial.                           (Doc. No. 86).
The jury found Hadding guilty of all four counts of pandering obscenity involving
a minor.   (Doc. Nos. 81-84).
{¶6} On June 14, 2012, the trial court held a sentencing hearing.   (Doc. No.
99).   The trial court determined the offenses were not allied offenses of similar
import and did not merge.   (Id.).   The trial court sentenced Hadding to seven years
imprisonment on Count One, eighteen months imprisonment on Count Two, seven
years  imprisonment  on  Count  Three,  and  seventeen  months  imprisonment  on
Count Four.   (Id.).   The trial court ordered Hadding to serve Counts One, Two, and
- 3 -

Case No. 2-12-14
Four consecutively to  each other and concurrently to  Count  Two, for a total
sentence of nine years and eleven months imprisonment.   (Id.).
{¶7} On July 13, 2012, Hadding filed a notice of appeal.                                 (Doc. No. 116).
Hadding now raises one assignment of error for our review.
Assignment of Error
The trial court erred when it failed to merge Count I with Count
II and Count III with Count IV and sentenced the defendant on
all four counts of the indictment.
{¶8} In his sole assignment of error, Hadding argues the trial court erred
when it determined that Count One did not merge with Count Two and Count
Three did not merge with Count Four.   Hadding contends that the possession and
creation of the obscene material involving a minor are allied offenses of similar
import  because  he  could  not  create  the  photographs  and  videos  without  also
possessing them.   Hadding argues that since the offenses are allied offenses of
similar import, the trial court erred when it failed to merge them.   In response, the
State argues that the trial court correctly determined that the offenses should not
merge  because  Hadding  had  a  separate  animus  for  each  offense.    The  State
contends  that  Hadding  continued  to  possess  the  photograph  and  video  after
creating them, which is evidence of a separate animus for the possession from the
animus for the creation.
- 4 -

Case No. 2-12-14
{¶9} Whether offenses are allied offenses of similar import is a question of
law that this Court reviews de novo. State v. Stall, 3d Dist. No. 3-10-12, 2011-
Ohio-5733, ¶ 15, citing State v. Brown, 3d Dist. No. 1-10-31, 2011-Ohio-1461, ¶
36.
{¶10} R.C. 2941.25, Ohio’s multiple-count statute, states:
(A)  Where  the  same  conduct  by defendant  can  be  construed  to
constitute  two  or  more  allied  offenses  of  similar  import,  the
indictment or information may contain counts for all such offenses,
but the defendant may be convicted of only one.
(B)  Where  the  defendant’s  conduct  constitutes  two  or  more
offenses of dissimilar import, or where his conduct results in two or
more offenses of the same or similar kind committed separately or
with a separate animus as to each, the indictment or information may
contain  counts  for  all  such  offenses,  and  the  defendant  may  be
convicted of all of them.
{¶11} In State v. Johnson, a plurality opinion, the Supreme Court of Ohio
modified  the  analysis  for  determining  whether  offenses  are  allied  offenses  of
similar import pursuant to R.C. 2941.25. 128 Ohio St.3d 153, 2010-Ohio-6314.
First, the court must determine whether it is possible to commit both offenses with
the same conduct. Id. at ¶ 48.                                                            “If the multiple offenses can be committed with the
- 5 -

Case No. 2-12-14
same conduct, then the court must determine whether the offenses were committed
by the same conduct, i.e., ‘a single act, committed with a single state of mind.’” Id.
at                                                                                         ¶  49, quoting State v. Brown,  119 Ohio St.3d  447,  2008-Ohio-4569,  ¶  50
(Lanzinger, J., dissenting).   If it is possible to commit the offenses with the same
conduct and the defendant did, in fact, commit the multiple offenses with the same
conduct, then the offenses are allied offenses of similar import and will merge. Id.
at ¶ 50.   However, “if the court determines that the commission of one offense will
never result in the commission of the other, or if the offenses are committed
separately, or if the defendant has separate animus for each, then according to R.C.
2941.25(B), the offenses will not merge.” Id. at ¶ 51.
{¶12} Hadding was convicted of pandering obscenity involving a minor in
violation of R.C. 2907.321(A)(1) and (5).   The statute states, in pertinent part, that:
(A)  No person, with knowledge of the character of the material or
performance involved, shall do any of the following:
(1)   Create, reproduce, or publish any obscene material that has a
minor as one of its participants or portrayed observers;
(5)    Buy, procure, possess, or control any obscene material, that has
a minor as one of its participants;
- 6 -

Case No. 2-12-14
{¶13} Hadding concedes that separate images, in this case the video and the
cell phone image, are sufficient to establish separate acts requiring a sufficient
animus.    See  State  v.  Eal,                                                          10th  Dist.  No.   11AP-460,  2012-Ohio-1373,  ¶  93
(“Although defendant may have uploaded the ten images at around the same time,
each file he uploaded constitutes a new and distinct crime.”).   However, Hadding
argues that the two counts that apply to each item of obscene material should have
merged because there was a single act and animus for each one.   Hadding relies on
the Eighth District’s decision in State v. Hendricks to support his argument that the
creation and possession of obscene material involving a minor in violation of R.C.
2907.321(A)(1) and  (A)(5) are allied offenses of similar import.                        8th Dist. No.
92213,  2009-Ohio-5556.    In  Hendricks,  the  Eighth  District  held  that  the  two
offenses were allied offenses of similar import because the creation of the obscene
material would necessarily result in possession of that material.  Id. at 33.
{¶14} While  we  agree  with  the  Hendricks  Court  that  it  is  possible  to
commit the two offenses with the same conduct, that is not the end of our inquiry.
The Eighth District issued its opinion in Hendricks prior to the Ohio Supreme
Court’s decision in Johnson; consequently, the analysis this Court must apply is
different from the analysis the Eighth District applied in Hendricks.   Pursuant to
Johnson, we must also determine whether Hadding committed the two offenses
separately or with a separate animus.   Johnson at ¶ 51.   The Supreme Court of
- 7 -

Case No. 2-12-14
Ohio has defined animus as “purpose, or more properly, immediate motive.”   State
v. Logan, 60 Ohio St.2d 126, 131 (1979).   If Hadding committed the two offenses
separately or with a separate animus, then they are not allied offenses of similar
import even though it  is possible to commit the two offenses with the same
conduct.  Id.
{¶15} We agree with the trial court that Hadding had a separate animus for
the creation and possession of the obscene material.   During the trial, multiple
witnesses testified that Hadding secretly created the obscene material and then
continued to possess it.   C.H. testified that she had observed Hadding take pictures
of S.M. at night on multiple occasions.                                                    (Apr.  25,  2012 Tr. at  35-37).    C.H.
testified that on one night in particular, about a month or two before she called the
police, she woke up at night “and I seen my dad about to walk into my room with
his phone.   He told me to go back to bed and I didn’t.   And then I heard him come
in again so I squenced (sic) my eyes to see what was going on and he walked over
to  [S.M.]’s side and lifted up her tank top.”                                             (Id. at                                    35).    C.H. testified that
Hadding would also pull down C.H.’s tank top and that she saw Hadding enter
their room to take pictures about three or four times.                                     (Id. at 37).   According to
C.H., she had also discovered a video camera in the bathroom.                              (Id. at 31).   C.H.
testified  that  she  gave  the  camera  to  S.M.,  who  hid  it,  but  that  the  girls
subsequently found the camera hidden in the bathroom again.   (Id. at 62).
- 8 -

Case No. 2-12-14
{¶16} S.M. testified that since she was wearing her softball uniform in the
video, it must have been taken in May or June 2011.                                  (Id. at 100).   S.M. testified
that it appeared the camera had been hidden under C.H.’s bed in the room they
shared.                                                                              (Id. at 99).   S.M. testified that the video showed her leaving her bedroom
to go take a shower, returning in a towel, and then removing the towel to get
dressed.                                                                             (Id. at 100-102).   S.M. also testified that the shorts and bedspread in the
cell phone image belonged to her, that the image was of her vagina, and that she
was unaware it had been taken.                                                       (Id. at 108-109).   S.M. further testified that she
had discovered a video camera hidden in the bathroom on multiple occasions.   (Id.
at 89-91).
{¶17} Law enforcement testified regarding the image of  S.M. that they
discovered on Hadding’s cell phone.   Detective James Holzapple testified that he
obtained Hadding’s cell phone  and that Hadding indicated he had owned the
phone for two or three months prior to September 17, 2011.                           (Apr. 26, 2012 Tr. at
177).   Officer Kevin Delong testified that he processed Hadding’s cell phone and
discovered four images.                                                              (Id. at 198-204).   Two images were created on August
30, 2011 at 10:39 p.m. and 11:31 p.m.                                                (Id. at 204).   The remaining two images
were created on September 1, 2011 at 11:31 p.m. and September 12, 2011 at 11:08
p.m.                                                                                 (Id.).   Detective Jerry Sawmiller testified that the image relevant to this case
- 9 -

Case No. 2-12-14
was of fingers pulling underwear away from S.M.                                      (Id. at 228).   That image was
one of the two created on August 30, 2011.   (Id. at 247).
{¶18} After  reviewing  the  evidence,  we  agree  with  the  trial  court  that
Hadding first created the video and cell phone image of S.M., and then continued
to possess this obscene material until his arrest on September 17, 2011.   We also
find that Hadding had one animus, or improper motive, for initially creating the
obscene  material, and a separate animus for continuing to possess it after its
creation.   We note that the trial testimony established that Hadding created the
video in May or June 2011 and the cell phone image on August 30, 2011, and
possessed both obscene items until his arrest on September 17, 2011.   The trial
testimony also established that Hadding created the images by hiding a video
camera in the girls’ room and sneaking into the room at night to capture the cell
phone image.   The trial testimony further established that Hadding had made prior
attempts to capture obscene material, which may or may not have been successful,
by hiding a camera in the bathroom and sneaking into their bedroom on multiple
occasions.
{¶19} We disagree with Hadding that his initial creation and then continued
possession of the video and images constituted a single course of conduct lasting
weeks, and even months.   Rather, we find that Hadding had a separate motive to
create the obscene material from his motive to continue to possess it for his
- 10 -

Case No. 2-12-14
personal use, and that this separate animus results in separate offenses.   The trial
court correctly concluded that  Hadding’s offenses were not allied offenses of
similar import and should not merge.
{¶20} Hadding’s assignment of error is, therefore, overruled.
{¶21} Having  found  no  error  prejudicial  to  the  appellant  herein  in  the
particulars assigned and argued, we affirm the judgment of the trial court.
Judgment Affirmed
WILLAMOWSKI and SHAW, J.J., concur.
/jlr
- 11 -

Download 2-12-14.pdf