State v. Hodge

Citation: 2014 Ohio 1860Docket: 2013 CA 27

Court: Ohio Court of Appeals; May 2, 2014; Ohio; State Appellate Court

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Lee D. Hodge was convicted of twelve counts of pandering sexually oriented matter involving a minor, classified as a second-degree felony under R.C. 2907.322(A)(1), after a bench trial in the Miami County Court of Common Pleas. The court merged the counts into one and sentenced him to two years in prison, designating him a Tier II sex offender, while staying the sentence pending appeal. Hodge appealed, contesting the sufficiency of the evidence and his sentence. 

In addressing the sufficiency of the evidence, the court explained that an appellate review follows the same standard as a motion for acquittal under Ohio Rule of Criminal Procedure 29. The evidence presented at trial consisted solely of stipulated facts, including that images found on Hodge’s computer depicted minors in sexual activities, and that he knowingly downloaded this material, having been informed of his rights prior to admission. The conduct occurred on October 30, 2012, in Laura, Miami County, Ohio. The trial court had received additional exhibits regarding the interpretation of "downloading" as "reproducing" under R.C. 2907.322(A)(1). Hodge's motion for acquittal was denied. The court affirmed the trial court's judgment.

On May 29, 2013, the trial court found Hodge guilty of all counts, concluding that his act of downloading images constituted "reproduction" under R.C. 2907.322(A)(1). Hodge admitted that all elements of this statute were met. On appeal, he contended that downloading to his personal computer should not be classified as reproduction and argued that his actions were more aligned with R.C. 2907.322(A)(5), which concerns knowingly possessing materials depicting minors in sexual acts, a lesser offense. Hodge asserted that the statutes he referenced pertain to direct victimization or distribution of illegal images, unlike his case.

Citing the precedent set in Sullivan, where a defendant was convicted for similar actions involving downloaded prohibited images, the court affirmed that a reasonable juror could view Hodge's downloading as reproduction. It noted the ambiguity in the terms "reproduce" and "download," but maintained that the language of R.C. 2907.322(A)(1) encompasses the creation of additional copies, regardless of intent for personal use.

Hodge's first assignment of error regarding the sufficiency of evidence was overruled. In a second assignment of error related to sentencing, Hodge argued that the trial court abused its discretion by not sentencing him to community control. He acknowledged the presumption of incarceration for second-degree felonies but claimed the court did not adequately consider his specific conduct or expert testimony under R.C. 2929.13(D)(1)(b).

Under R.C. 2929.13(D)(1), a second-degree felony typically requires a prison term, but a trial court may opt for community control sanctions if it finds that such sanctions would sufficiently punish the offender and protect the public while also not diminishing the seriousness of the offense. To reach this conclusion, the court must determine that factors indicating a lower likelihood of recidivism outweigh those indicating a higher likelihood, and that factors suggesting the offender’s conduct is less serious outweigh those indicating it is more serious.

R.C. 2929.12 outlines specific factors for assessing the seriousness of the offense. 'More serious' factors include the victim’s vulnerability, serious harm suffered, the offender’s position of trust, and motivations related to prejudice or organized crime. Conversely, 'less serious' factors include provocation, lack of intent to cause harm, and substantial mitigating grounds.

During sentencing, Hodge presented testimony from his father and Dr. Fred Sacks, a psychologist experienced in sex offender evaluations. Sacks, after multiple evaluations, diagnosed Hodge with adjustment disorder, paraphilia related to child pornography, and features of schizoid and schizotypal personality disorders. He recommended that Hodge undergo counseling, which Hodge had already begun.

Sacks testified about the distinctions between contact and non-contact sex offenders, identifying Hodge as a non-contact offender with minimal recidivism risk indicators, particularly among first-time child pornography offenders. He recommended Hodge participate in a specialized treatment program for three to five years, followed by maintenance therapy, believing Hodge was amenable to treatment. Hodge had downloaded thousands of images over several years, viewing child pornography multiple times weekly. Hodge's father characterized him as a non-problematic individual who does not use drugs or alcohol and would comply with counseling requirements. Hodge’s attorney emphasized his cooperation with investigators, consistent attendance at hearings, and a support network facilitating rehabilitation.

In sentencing, the court recognized a presumption for prison terms but found that community control could adequately punish Hodge and protect the public. However, it determined that the seriousness of Hodge's conduct, which included downloading videos of young children in sexual acts, outweighed any mitigating factors. The court highlighted the severe impact of Hodge's actions on the victims, concluding that a prison sentence was warranted. The trial court affirmed its decision after considering various reports and testimonies, finding no error in its determination regarding the severity of Hodge's conduct under relevant statutes. Hodge's appeal was ultimately overruled, and the trial court's judgment was affirmed.