[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 

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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 
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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 
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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. 
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{¶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 
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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; 

* * * 
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{¶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 
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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). 
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{¶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 
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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 
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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