"Video Voyeurism," Transfer and Venue

This post examines an opinion from the Supreme Court of Mississippi:  Nuckolls v. State, 2015 WL 8482698 (2015). This court, unlike most courts, did not begin its opinion by explaining what facts led to Samuel Nuckolls’ being charged with video voyeurism.  If you check out the news stories you can find here, here and here, you can learn about how, and why, the case arose.

The Supreme Court begins its opinion by explaining that, “[i]n this thirteen-count, video-voyeurism bench trial, the parties agreed to forego calling witnesses and to have the trial judge decide the case on a submission of stipulated facts.” Nuckolls v. State, supra.  I must admit that I was not aware of that as an option, so I did some online research.  If you would like to read more about a trial on stipulated facts, check out the entries you can find here, here and here.

I need to note one other aspect of the opinion:  The opinion examined in this post is the opinion of the Supreme Court, as a court that, as Wikipedia explains, consists of nine Justices.  Two of the Justices – Michael K. Randolph Randy G. Pierce – concurred with the majority of justices on certain issues and dissented on certain issues, in an opinion written by Justice Randolph.  Nuckolls v. State, supra.  

Getting back to Samuel Nuckolls, the Supreme Court went on to explain that on

February 14, 2012, a DeSoto County grand jury indicted Samuel Nuckolls for thirteen violations of Mississippi Code Section 97–29–63, which provides:

`Any person who with lewd, licentious or indecent intent secretly photographs, films, videotapes, records or otherwise reproduces the image of another person without the permission of such person when such a person is located in a place where a person would intend to be in a state of undress and have a reasonable expectation of privacy, including, but not limited to, private dwellings or any facility, public or private, used as a restroom, bathroom, shower room, tanning booth, locker room, fitting room, dressing room or bedroom shall be guilty of a felony. . . .

Nuckolls v. State, supra.  

Next, it pointed out that The Supreme Court then went on to explain that the

original indictment charged that Nuckolls `secretly filmed and videotaped’ women in his bathroom on thirteen occasions. When Nuckolls moved to dismiss most of the counts because they had occurred outside the two-year statute of limitations, the State obtained an amended indictment, adding language charging that Nuckolls `otherwise reproduced’ the images within the statute of limitations by saving them on his computer.

Nuckolls's attorney then moved for a continuance, arguing that the State had made no allegation and had no proof as to where the images had been reproduced. The circuit judge denied the motion and found that all of the counts survived the statute of limitations.

Nuckolls v. State, supra.  

The court then outlined the proceedings below, explaining that Nuckolls

then waived his right to a trial by jury, and the parties submitted an agreed stipulation of facts to the circuit judge, asking the circuit judge to decide the case based on that stipulation. The stipulation included no information as to where the images allegedly were reproduced, and Nuckolls preserved his challenge to the statute of limitations. Based on the stipulation of facts, the circuit judge convicted Nuckolls on all thirteen counts.

On appeal, Nuckolls attacks his ten transfer convictions on two grounds: (1) the statute does not criminalize the transfer of images to a computer; and (2) even if it does, the State failed to prove where the transfer took place, or who made the transfer. He also challenges one of his three filming convictions, arguing that the State failed to prove that it occurred within the statute of limitations. He has not appealed the other two filming convictions.

Nuckolls v. State, supra.  

The Supreme Court began its analysis with Nuckolls’ challenge to his convictions on the “transfer” counts, explaining, initially, that

[w]hen we consider the sufficiency of the evidence, our `”relevant inquiry is whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.”’ `”The state receives the benefit of all favorable inferences that may reasonably be drawn from the evidence.”’

¶ 7. The stipulation -- which was the sole evidence at trial -- is entirely silent as to where the transfers occurred. The State has not suggested otherwise in its brief. And when asked about the venue issue at oral argument, the State responded that, because Nuckolls resides in DeSoto County, the trial judge was within his discretion to find that the transfers took place there.

Nuckolls v. State, supra.  

The court went on to point out that

[w]e consistently have held that venue is an essential part of the State's burden of proof that `may be proved by direct or circumstantial evidence.’ This precedent is based on the Mississippi Constitution's requirement that “an accused has the right to trial “by an impartial jury of the county where the offense was committed.”’ Also, venue in this case—as in all criminal cases—constitutes a material allegation of the indictment that becomes a part of the State's burden of proof.

Nuckolls v. State, supra.  

The Supreme Court then began its substantive analysis of Nuckolls’ venue argument, noting, initially, that

[n]o evidence was provided at trial to show where the transfers took place. And to imply, as the State suggests, that the transfers occurred in DeSoto County simply because Nuckolls resided there—even though he allegedly used a laptop computer that (1) was purchased in Tennessee, (2) was found in Arkansas, and (3) could operate anywhere—would strain credibility and obviate the State's burden of proof.

¶ 10.The stipulation did not state . . . that the transfers occurred at either of Nuckolls's residences. For example, for Count 1 (which largely mirrors the language of the other counts), the stipulation states in its entirety:

In Count 1 the State would show that SAMUEL NUCKOLLS, between the dates of June 1, 2007 and October 29, 2011, did willfully, unlawfully and feloniously, with lewd, licentious or indecent intent secretly photograph, film, videotape, record, or otherwise reproduce the image of another, to wit: Ashley Fisher, without the permission of Ashley Fisher when Ashley Fisher was located in a place where a person would intend to be in a state of undress and have a reasonable expectation of privacy, to-wit: in the bathroom.

The State would offer four videos. The first video, labeled `af’ shows Sammy Nuckolls setting up video equipment in the bathroom located at 9848 Pigeon Roost Circle, Olive Branch, Mississippi. That video shows Ashley Fisher enter the bathroom, undress, and take a shower. She finishes and leaves the bathroom. Ashley Fisher would testify that she did not give permission or consent to be recorded.

The second video, labeled `afh’ shows Sammy Nuckolls setting up video equipment in the bathroom located at 9848 Pigeon Roost Circle, Olive Branch, Mississippi. That video shows Ashley Fisher enter the bathroom, undress, and take a shower. She finishes and leaves the bathroom. Ashley Fisher would testify that she did not give permission or consent to be recorded. This video appears to be older than the video labeled `af’ due to a piece of furniture not being present in `afh.’

The third video, labeled `afp’ shows Sammy Nuckolls setting up video equipment in the bathroom located at 9848 Pigeon Roost Circle, Olive Branch, Mississippi. That video shows Ashley Fisher enter the bathroom, undress, and take a shower. She finishes and leaves the bathroom. Ashley Fisher would testify that she was pregnant in this video. Ashley Fisher would testify that she did not give permission or consent to be recorded. The piece of furniture seen in `af’ is present.

The fourth video, labeled `afrp’ shows Sammy Nuckolls setting up video equipment in the bathroom located at 9848 Pigeon Roost Circle, Olive Branch, Mississippi. That video shows Ashley Fisher enter the bathroom, undress, and take a shower. She finishes and leaves the bathroom. Ashley Fisher would testify that she did not give permission or consent to be recorded. Ashley Fisher would testify that she was pregnant when this was recorded. She would further testify that this video took place some time after `afp.’  Testimony would establish that these videos were found on the Defendant's Apple MacBook Pro (Serial number W8047932ATMA1344). The videos were all located in the subfolder orange.

Nuckolls v. State, supra.  

The opinion also explained that

[n]othing in the stipulation suggests where the transfer to the laptop took place. Every mention of Nuckolls's residence—in this count and all others—pertains only to where the filming took place. . . .

Nuckolls v. State, supra.  And it noted that,

[a]lso, Presiding Justice Randolph incorrectly contends that Nuckolls waived this assignment of error by failing to obtain a ruling in the trial court. As stated, venue is a constitutional requirement, and this Court has said repeatedly `that the question could be raised for the first time in [the Supreme Court] court,’ on appeal. As recently as 2012, we have recognized and reaffirmed this principle.

¶ 13. Nuckolls has raised this issue on appeal. . . . Nuckolls argued that `the State presented no evidence to the Court showing where the transfer took place. . . .’ With regard to the State's burden of proof, a complaint that the State failed to prove where the crime took place can be read only as a statement that the State failed to prove venue.

¶ 14.Further, the record contradicts Presiding Justice Randolph's assertion that Nuckolls `agreed that the evidence the State would offer was sufficient to convict Nuckolls.’ When the parties appeared before the circuit judge to submit the stipulation of facts, the parties repeatedly affirmed that they were asking the judge to adjudicate the defendant's guilt. Defense counsel, the circuit judge, and the prosecutor each specifically noted at one point or another that the judge had to determine whether the stipulation established Nuckolls's guilt. In fact, at one point when the circuit judge specifically asked if Nuckolls was entering a guilty plea, the prosecutor informed the judge that he had to determine Nuckolls's guilt.

Nuckolls v. State, supra (emphasis in the original).

The Supreme Court then explained that

there was no attempt to plead guilty. . . . To adopt Presiding Justice Randolph's reading would conflict with the rest of the parties' and the judge's statements. And the circuit judge apparently did not believe Nuckolls had admitted his guilt because, when the court reconvened, the trial judge began by stating

heretofore the Court was informed by counsel for the defense and counsel for the state that they wished a bench trial. That is, they wanted the Court to rule on the defendant's guilt or innocence based on a stipulation of fact.

(Emphasis added.) The judge then rendered his verdict count by count, formally finding that the stipulation provided sufficient evidence to support each one. In no way did he suggest that the parties had conceded that the stipulation provided sufficient evidence.

¶ 18.Because the State offered no evidence to meet its constitutional burden to prove venue, we must reverse the transfer convictions.

Nuckolls v. State, supra (emphasis in the original).  Since the court reversed Nuckolls’ convictions on ten of the transfer accounts because of the venue issue, it noted that it did not need to “address Nuckolls’s contention that the statute does not criminalize his conduct.”  Nuckolls v. State, supra.  

And then the Supreme Court took up Nuckolls’ final argument, i.e., that “the State failed to prove that count eleven occurred within the statute of limitations because the parties stipulated that the filming occurred within a range of dates, including dates both within and outside the two-year statute of limitations.”  Nuckolls v. State, supra.  It began its analysis by noting that

[w]hen considering the sufficiency of the evidence, our `”relevant inquiry is whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.”’ `”The state receives the benefit of all favorable inferences that may reasonably be drawn from the evidence.”’ And the State bears the burden to prove that an offense occurred within the statute of limitations.

Nuckolls v. State, supra.  

The court then explained that

¶ 20.Here, the parties stipulated that count eleven occurred between June 1, 2007, and October 29, 2011. They also stipulated that it occurred at Nuckolls's Meadow Ridge residence, where he moved on October 6, 2009. So the date range includes a short time period—October 6, 2009, to October 28, 2009—more than two years before Nuckolls's arrest on October 29, 2011, and outside the statute of limitations.

¶ 21.The parties also stipulated, however, that `[t]he [count eleven] video ends with Sammy Nuckolls entering with a silver laptop consistent with the Apple MacBook Pro.’ Nuckolls purchased the Apple MacBook Pro on January 5, 2011. So, drawing all reasonable inferences in favor of the State, we find that the State presented sufficient evidence because the stipulation gives rise to a strong inference that the video depicts the same computer purchased in January 2011, and that the recording must have occurred after that date.

Nuckolls v. State, supra.  

The Supreme Court then announced its rulings, explaining that

Nuckolls has not appealed his convictions on counts three and four, so those convictions are not before us.

The State presented sufficient evidence to prove that count eleven—filming—occurred within the statute of limitations, so that conviction is affirmed. But the State failed to prove venue for counts one, two, five, six, seven, eight, nine, ten, twelve, and thirteen, so we reverse the trial count's judgment as to those convictions.

Nuckolls v. State, supra.  

“Child Sexually Abusive Material” and “Using a Computer to Commit a Crime”

This post examines a recent opinion from the Court of Appeals of Michigan:  People v. Gatzke, 2015 WL 7750157 (2015) (per curiam).  The opinion begins by explaining that Shawn Lee Gatzke

pleaded guilty to one count of using a computer to commit a crime. [Michigan Compiled Laws] 752.796.  The trial court departed downward from the sentencing guidelines and sentenced defendant to 5 years of probation, with the first year to be served in the county jail. The prosecution sought leave to appeal, which we granted. We remand for further proceedings consistent with this opinion.

People v. Gatzke, supra.

Michigan Compiled Laws § 752.796 is an unusual criminal statute.  As I explained in detail in a post I did four years ago, only two U.S. states have statutes that create this offense.  The Michigan statute is entitled “[u]se of computers to commit, solicit, attempt, etc., a crime; prosecutions for other violations of law” and, as I explained in the earlier post, it makes using a computer to commit (or solicit or attempt to commit) a separate crime. 

As I explained in that post, my theory (at least) is that Michigan and Hawaii (the only other state to have this crime) adopted these statutes to treat the use of computers to commit crimes in a fashion analogous to statutes that make it a separate crime, or a factor that aggravates the sentence imposed for a traditional crime, to use a firearm in the commission of the offense. 

Getting back to the Gatzke case, the opinion goes on to explain that

[a]t the plea hearing, defendant admitted that he used a computer to view pictures of children performing sexual acts and paid someone in another country to take pictures of children performing particular sexual acts. It is undisputed that defendant was on probation for possessing and distributing child sexually abusive material when he was caught with the materials giving rise to the conviction in this case.

Before sentencing, the trial court received a report from a psychological evaluation of defendant that occurred after he entered his guilty plea, as well as reports from two previous psychological evaluations. The most recent evaluation confirmed, among other things, that defendant suffers from severe post-traumatic stress disorder (`PTSD’), alcohol dependence, and sexual addiction. The report also noted that defendant's sexual addiction appears to be related to the poor coping strategies utilized by defendant to manage his PTSD.

People v. Gatzke, supra.

In a footnote the court appended at the end of the first sentence of the first paragraph quoted immediately above, the Court of Appeals explained that

Defendant initially stated that he was not certain whether the photographs that he purchased were reproduced, or whether the individual receiving payment actually took the photographs. However, he later clarified that he asked the individual to take pictures of young children performing sexual acts with his or her cell phone and send the photographs to defendant.

People v. Gatzke, supra.

The court went on to explain that at Gatzke’s sentencing,

the trial court acknowledged that this was defendant's second offense involving child sexually abusive material, and that defendant had an opportunity for rehabilitation during his probation sentence for the previous offense. Likewise, the trial court recognized that this circumstance would normally preclude a more lenient sentence. 

Nevertheless, the trial court significantly departed from the minimum range calculated under the sentencing guidelines, which was 84 to 140 months' imprisonment, and sentenced defendant to five years' probation, with the first year in the county jail. The conditions of defendant's probation include: (1) taking advantage of services offered by the United States Department of Veterans Affairs (`VA’) (2) successfully completing the VA program prescribed following a VA assessment, and (3) participating in a substance abuse evaluation.

The trial court judge provided the following reasons for the downward departure: (1) the judge's belief that PTSD is not well understood; (2) his belief that defendant's PTSD prevented him from recognizing his problems and seeking out treatment, such that defendant is `numb’ due to his PTSD and engaged in this criminal activity as a result; (3) the judge's experiences with his own great uncle, who suffered from PTSD following World War I; (4) the judge's belief that `defendant engaged in these kind of viewing activities essentially to anesthetize himself from facing his ongoing problems’; (5) the fact that `it wouldn't surprise [the judge] if [d]efendant's viewing activities started when he was in the army’ and `if this is what soldiers did in Afghanistan with their time off if they had computer access’; (6) his belief that defendant would not have viewed this material if he had not served in Afghanistan, although `[he] suppose[d] there's no way of proving it’; and (7) the judge's knowledge of the types of things that military personnel saw and experienced in Afghanistan based on materials he has read.

People v. Gatzke, supra.

The Court of Appeals then took up the legal issue raised by the appeal, noting that

On appeal, the prosecution argues that the trial court abused its discretion when it departed from the sentencing guidelines because it failed to justify its departure with a sufficiently substantial and compelling reason that was based on objective and verifiable facts.

The People v. Lockridge, 498 Mich. 358 (Michigan Supreme Court 2015)] court held that our sentencing scheme `violates the Sixth Amendment right to a jury trial because it requires “judicial fact-finding beyond facts admitted by the defendant or found by the jury to score offense variables (OVs) that mandatorily increase the floor of the guidelines minimum sentence range, i.e., the `mandatory minimum’” sentence under Alleyne.’ Our Supreme Court `concluded that the appropriate remedy was to render Michigan's sentencing guidelines merely advisory.’

Accordingly, our Supreme Court `sever[ed] MCL 769.34(2) to the extent that it is mandatory and [struck] down the requirement of a ‘substantial and compelling reason’ to depart from the guidelines range in MCL 769.34(3).’ `A sentence that departs from the applicable guidelines range will be reviewed by an appellate court for reasonableness.’ However, sentencing courts must `continue to consult the applicable guidelines range and take it into account when imposing a sentence.’ [People v. Terrell, ––– Mich.App –––– (2015) (Docket No. 321573). . . .  

Accordingly, a claim of error based on a trial court's failure to provide substantial and compelling reasons for a departure sentence is no longer viable under Michigan law. Instead, after People v. Lockridge, supra, the proper inquiry is whether a defendant's departure sentence is reasonable. People v. Lockridge, supra.  

People v. Gatzke, supra (emphasis in the original).

The Court of Appeals then noted that,

[a]s this Court recently recognized, the Lockridge Court did not set forth the appropriate procedure for reviewing a sentence for reasonableness. People v. Steanhouse, __ Mich. App __ (2015). . . . Thus, the Steanhouse Court adopted the `principle of proportionality’ that was previously in place under People v. Milbourn, 435 Mich. 630; 461 NW2d 1 (Michigan Supreme Court 1990), `hold[ing] that a sentence that fulfills the principle of proportionality under Milbourn and its progeny constitutes a reasonable sentence under Lockridge.’ People v. Steanhouse, supra. . . .

In addition, the panel provided the following procedure for reviewing a defendant's departure sentence:

`Given that Lockridge overturned the substantial and compelling reason standard, Lockridge, supra, which was in place at the time of defendant's sentencing, and given our conclusion that the principle of proportionality established under Milbourn and its progeny is now the appropriate standard by which a defendant's sentence should be reviewed, we also find that the procedure articulated in Lockridge, and modeled on that adopted in U.S. v. Crosby, 397 F3d 103 (U.S. Court of Appeals for the 2d Circuit 2005), should apply here. Lockridge, __ Mich. at __. . . . 

As recently stated by this Court in People v. Stokes, __ Mich.App __, . . . (2015), `the purpose of a Crosby remand is to determine what effect Lockridge would have on the defendant's sentence, so that it may be determined whether any prejudice resulted from the error.’ While the Lockridge Court did not explicitly hold that the Crosby procedure applies under the circumstances of this case, we conclude this is the proper remedy where, as here, the trial court was unaware of and not expressly bound by a reasonableness standard rooted in the Milbourn principle of proportionality at the time of sentencing.

People v. Gatzke, supra.

Finally, the Court of Appeals explained that under the

Crosby procedure, which `offers a measure of protection to a defendant[,]’ `a defendant is provided with an opportunity “to avoid resentencing by promptly notifying the trial judge that resentencing will not be sought.’” People v. Stokes, supra . . . .Given the possibility that defendant could receive a more severe sentence, defendant should be provided the opportunity to avoid resentencing if that is his desire. People v. Stokes, supra. 

Accordingly, we remand the matter to the trial court to follow the Crosby procedure outlined in Lockridge. Defendant `may elect to forego resentencing by providing the trial court with prompt notice of his intention to do so.’ If `notification is not received in a timely manner,’ the trial court shall continue with the Crosby remand procedure as explained in Lockridge.” People v. Stokes, supra. . . .

People v. Gatzke, supra.

The Court of Appeals then applied the above principles to this case, noting that

[h]ere, as in People v. Steanhouse, supra, the trial court was neither aware of, nor expressly bound by, a reasonableness standard grounded in the Milbourn principle of proportionality when it imposed defendant's sentence. As such, under Steanhouse, remand is necessary so that the trial court may implement the Crosby remand procedure as articulated in Lockridge. . . .

However, unlike in Steanhouse, the prosecution is the party challenging on appeal the trial court's departure from the sentencing guidelines. Accordingly, we conclude that it is the prosecution that may elect to forgo resentencing by promptly notifying the trial court of its intent to do so. See People v. Steanhouse, supra. . . . If the trial court does not receive such notice from the prosecution in a timely manner, the `court shall continue with the Crosby remand  procedure as explained in Lockridge.’ People v. Steanhouse, supra.

People v. Gatzke, supra.

The Court of Appeals therefore remanded “this case for further proceedings consistent with this opinion. We do not retain jurisdiction.” People v. Gatzke, supra.

You can, if you are interested, read more about the facts in this case and the legal proceedings in the news stories you can find here and here.

The Ex-Wife, "Hacking for Dummies" and Obstructing Official Business

This post examines a recent opinion from the Ohio Court of Appeals – 9th District:  State v. Eggeman, 2015 WL 8553346 (2015).  The court begins the opinion by explaining that “Daniel J. Eggeman, appeals pro se from the judgment of the Wadsworth Municipal Court.”  State v. Eggeman, supra. Wadsworth is a city in Ohio.

The Court of Appeals begins the substantive part of the opinion by explaining that

[o]n December 6, 2013, Eggeman contacted the police to report that he was receiving unwanted emails and phone calls from his ex-wife, Becky Workman. Officer Keith Studer of the Wadsworth Police Department responded to Eggeman's residence on Chestnut Street. Pamela Wingate, Eggeman's fiancée, indicated that she was receiving threatening phone calls from Workman and Eggeman showed Officer Studer emails sent from the email address becky.workmam@gmail.com to his email address. Notably, the email address contained a misspelling of Workman's last name.

The emails expressed a desire for reconciliation and were critical of Ms. Wingate. Officer Studer had Eggeman, in Studer's presence, send an email to becky.workmam @gmail.com, requesting that the contact cease. Several days later, Eggeman again contacted Officer Studer to report that Eggeman had received more emails and wanted Officer Studer to pursue charges against Workman.

Officer Studer then went to Workman's house to interview her. Workman denied any involvement and claimed that she had not had contact with Eggeman since the summer. She indicated that the last time she saw Eggeman, he asked her to complete a statement and have it notarized. When she refused, Eggeman became very upset and told her she would be hearing from his lawyer.

A few days later, Eggeman forwarded Officer Studer another email sent from the becky.workmam@gmail.com. That email included references that the sender and  Eggeman had previously discussed ways to kill Wingate so the two could be together. Given the content, subpoenas were issued to Google for the Internet Protocol (`IP’) addresses of the Chestnut street address and the becky.workmam Gmail account for the period from December 6, 2013 through December 23, 2013. Records revealed that the Gmail account was created July 25, 2013, and was accessed from two IP addresses during the December time frame.

Police then sent a subpoena to Frontier Communications, which is the cable internet provider associated with the IP addresses. The sum of the records indicated that the account was accessed, during the relevant time period, from Chestnut Street; specifically the address where Eggeman and Wingate lived. Laptop computers were seized from the Chestnut Street address and were analyzed by Officer Joshua Cooper, who specializes in computer forensics.

Ultimately, complaints were filed against Eggeman on February 3, 2014, for two counts of falsification and one count of obstructing official business. While Eggeman initially was subject to a $5,000 cash or surety bond, it was subsequently modified and Eggeman was released on bond. The Medina County Public Defender's Office initially represented Eggeman, but later withdrew after Eggeman retained private counsel. 

Shortly thereafter, that counsel withdrew and Eggeman retained another attorney. The matter proceeded to a jury trial, during which Eggeman was represented by the third attorney. The jury found Eggeman guilty of the charges. Eggeman represented himself at sentencing and his sentence was stayed pending appeal.

State v. Eggeman, supra.  

Eggeman raised a number of issues in his appeal.  This post only examines one of them. The Court of Appeals did not address all of the issues he raised, noting that “[m]any of Eggeman's arguments are not developed in his brief, . . . rely on evidence that was not before the trial court at the time . . . or rely on video or audio testimony that Eggeman asserts does not appear in the transcribed copy.”  State v. Eggeman, supra.  

Eggeman’s first argument was that “here was insufficient evidence to sustain the guilty verdicts.” State v. Eggeman, supra.  The Court of Appeals explained that the

issue of whether a conviction is supported by sufficient evidence is a question of law, which we review de novo. State v. Thompkins, 78 Ohio St.3d 380 (Ohio Supreme Court 1997). 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

 (Ohio Supreme Court 1991). . . .

State v. Eggeman, supra.  

The court went on to explain that Eggeman was

found guilty of violating [Ohio Revised Code §] 2921.13(A)(2) and (A)(3) and [Ohio Revised Code §] 2921.31. Ohio Revised Code § 2921.13(A) provides in relevant part that:

No person shall knowingly make a false statement, or knowingly swear or affirm the truth of a false statement previously made, when any of the following applies:

* * *

(2) The statement is made with purpose to incriminate another.

(3) The statement is made with purpose to mislead a public official in performing the public official's official function.

`A person acts knowingly, regardless of his purpose, when he is aware that his conduct will probably cause a certain result or will probably be of a certain nature. A person has knowledge of circumstances when he is aware that such circumstances probably exist.’ Former Ohio Revised Code § 2901.22(B).

’A person acts purposely when it is his specific intention to cause a certain result, or, when the gist of the offense is a prohibition against conduct of a certain nature, regardless of what the offender intends to accomplish thereby, it is his specific intention to engage in conduct of that nature.’ Former Ohio Revised Code § 2901.22(A). A public official includes law enforcement officers. See Ohio Revised Code § R.C. 2921.01(A).

Ohio Revised Code § 2921.31(A) states that `[n]o person, without privilege to do so and with purpose to prevent, obstruct, or delay the performance by a public official of any authorized act within the public official's official capacity, shall do any act that hampers or impedes a public official in the performance of the public official's lawful duties.’ `The making of an unsworn false oral statement to a public official with the purpose to mislead, hamper or impede the investigation of a crime is punishable conduct within the meaning of Ohio Revised Code §§ 2921.13(A)(3) and 2921.31(A).’ State v. Lazzaro, 76 Ohio St.3d 261 (Ohio Supreme Court 1996).

Nonetheless, `in order to have sufficient evidence to affirm an obstruction of official business conviction, there must be evidence that the defendant's actions hampered or impeded a law enforcement investigation and that the defendant intended such a result to occur.’ State v. Jordan, , 2014–Ohio–2857 (Ohio Court of Appeals 9^th District 2014) ¶ 40.

State v. Eggeman, supra.  

The Court of Appeals then noted that Eggeman’s argument

seems to focus on whether there was sufficient evidence that he was the individual responsible for sending the emails at issue. `The identity of a perpetrator must be proved by the State beyond a reasonable doubt.’ State v. Taylor, 2015–Ohio–403, ¶ 6 (Ohio Court of Appeals 9<sup>th</sup> District 2015). `[H]owever, identity may be proved by direct or circumstantial evidence, which do not differ with respect to probative value.’ State v. Taylor, supra. Thus, our review will accordingly be limited to whether there was sufficient evidence that Mr. Eggeman committed the crimes.

After reviewing the evidence in a light most favorable to the prosecution, and given  Eggeman's limited arguments, we determine sufficient evidence was presented to sustain the guilty verdicts. The circumstantial evidence would allow a trier of fact to find that Eggeman sent the emails at issue to himself from the becky.workmam@gmail.com account and that he nonetheless contacted the police on December 6, 2013, asserting that Workman sent him the emails in order to get Workman in trouble.

Workman testified at trial and denied sending the emails or even contacting Eggeman during the relevant period. She also indicated that the last time she saw Eggeman he had tried to get her to sign a notarized statement, which she refused to do. Workman indicated that Mr. Eggeman became very upset at her refusal to comply.

After Eggeman continued to report that he was receiving emails from the becky.workmam@gmail.com account, police subpoenaed Google for the IP addresses associated with the Gmail account. Officer Cooper, who specializes in computer forensics, explained that anyone can create an email account through Gmail and the person doing so would not have to supply truthful information.

Officer Cooper testified that every computer that is on the internet is assigned an IP address. He stated that an IP address is `like a home address for the computer.’ Officer Cooper further testified that there are too many devices that connect to the internet to have static IP addresses, and thus, the internet providers have to change the IP addresses over time to allow other devices to connect.

With respect to the Gmail account at issue, which was created on July 25, 2013, two IP addresses were associated with it during the relevant December 2013 time frame, one ending in .183.198 and one ending in .178.134. On December 6, 2013, the Gmail account was accessed from the .178.134 address. From December 16, 2013, through December 23, 2013, the Gmail account was accessed from the .183.198 address. Officer Studer testified that the dates and times of the emails corresponded to the login information received from Google.

State v. Eggeman, supra.  

The Court of Appeals continued, explaining that a search of the

IP addresses was then run using a website to determine the internet provider associated with the addresses. The internet provider of the two IP addresses was Frontier Communications. Frontier Communications was then subpoenaed, and its records indicated that from December 6, 2013 through December 23, 2013, two physical addresses were associated with the IP addresses; one of which was not associated with Eggeman and instead belonged to an individual who lived in Medina. The other physical address associated with the IP addresses was Eggeman's address on Chestnut Street.

According to Frontier Communications' records, from December 3, 2013 until December 11, 2013, the .178.134 address was associated with the Chestnut Street address and from December 11, 2013 until December 25, 2013, the .183 .198 address was associated with the Chestnut Street address. While the .178.134 address was associated with the Medina household from December 14, 2013 onward, Google's records do not indicate that the Gmail account was accessed from the .178.134 address during that time frame. Accordingly, there was evidence that the Gmail account was only accessed at the Chestnut Street address, where Eggeman resided, during the relevant time frame.

Additionally, police seized two laptop computers from the Chestnut street address. While Wingate, Eggeman, Eggeman's father, and three children all lived at the Chestnut Street address, Wingate testified that she did not send the emails and the children were not allowed to use the computers. Additionally, she testified that Eggeman's father was not often home during the day or on weekends. Officer Cooper created an exact copy of the images of both hard drives and then processed both through forensic software.

The software allowed Officer Cooper to search through the data on the hard drives for phrases. In this case, Officer Cooper chose `Workmam’ as a search term. The search returned 80 plus results. One of the results appeared to Officer Cooper to be the code for a Google login screen that included the becky.workmam@gmail.com account as a login option. Additionally, the internet search history of one of the computers included `How do I trace the Gmail account?[,]’ `Google account recovery[,]’ `Google delete account activity [,]’ `how to cure Gmail activity[,]’ and `remove picture from Google email.’ There was also evidence that that computer was used to access Mr. Eggeman's email account.

The second computer had documents saved on it related to computer hacking included, `Secrets of a Super Hacker[,]’ `FBI Situational Information Report, Sovereign Citizens and the Internet[,]” “Guide to Mostly Harmless Hacking[,]’ and `Hacking For Dummies.’ Additionally, there was a document that listed common computer passwords. Finally, there was a document on the computer entitled, `Screw the B*tch, Divorce Tactics for Men.’ During his testimony, Eggeman admitted that the searches and documents were his.

Moreover, when Officer Studer spoke with Eggeman about the charges, Eggeman seemed fairly knowledgeable about computers and IP addresses; he even indicated he had his own IP address memorized.

State v. Eggeman, supra.  

The Court of Appeals then explained that, given

all of the foregoing, and viewing the evidence in a light most favorable to the prosecution, we conclude the State presented sufficient evidence that would allow a trier of fact to find beyond a reasonable doubt that Eggeman was the person responsible for sending the emails, that he lied to the police in order to incriminate Workman, and that by doing so he hindered a police officer in the performance of his duties. There was circumstantial evidence that the emails were sent from Chestnut Street, where Eggeman resided. There was also circumstantial evidence that Eggeman was the person who sent the emails.

The jury could have found it suspicious that the becky.workmam@gmail.com account included a misspelling of Workman's name and found it unlikely that Workman would have misspelled her own name if she created the email address. Additionally, there was evidence that Eggeman was interested in how Gmail accounts work and how to alter their activity. Finally, there was evidence that Eggeman had a disagreement with  Workman the last time he saw her and that Eggeman may have held a grudge against her in light of some of the documents kept on the computers in the house on Chestnut Street. Overall, we cannot say that the State failed to produce sufficient evidence that Eggeman was the person involved in these crimes.

State v. Eggeman, supra.  

For these and other reasons, which you can read about in the court’s opinion, a link to which was included above, the Court of Appeals affirmed the judgment of the Wadsworth Municipal Court. State v. Eggeman, supra.