[Cite as State v. Ruediger, 2024-Ohio-1975.]

COURT OF APPEALS OF OHIO

EIGHTH APPELLATE DISTRICT

COUNTY OF CUYAHOGA

STATE OF OHIO, :

Plaintiff-Appellee, :

No. 112830

v. :

JOHN RUEDIGER, :

Defendant-Appellant. :

JOURNAL ENTRY AND OPINION

JUDGMENT: AFFIRMED

RELEASED AND JOURNALIZED: May 23, 2024

Criminal Appeal from the Cuyahoga County Court of Common Pleas

Case No. CR-21-659443-A

Appearances:

Michael C. O’Malley, Cuyahoga County Prosecuting 

Attorney, and Fallon Radigan and Melissa Riley, Assistant 

Prosecuting Attorneys, for appellee. 

Law Office of John T. Forristal and John T. Forristal, for 

appellant. 

LISA B. FORBES, J.:

John Ruediger (“Ruediger”) appeals his conviction for disseminating 

matter harmful to juveniles. After reviewing the facts of the case and pertinent law, 

we affirm the trial court’s decision.
I. Facts and Procedural History

In April 2021, Ruediger and K.V., who is the juvenile victim in this 

case, began exchanging messages on Grindr, which is a dating website used 

primarily by gay men, and Snapchat, which is a phone application primarily used 

for temporarily sharing photos and messages. K.V. was 13 years old at the time and 

living with his parents. On April 25, 2021, at approximately midnight, Ruediger 

went to K.V.’s house to meet in person. Ruediger approached K.V.’s house through 

the backyard and saw K.V. through the first-floor bathroom window. Ruediger left 

shortly after arriving.

K.V. woke up the next morning to his mom “screaming” at him that 

“there was a dude at the house.” K.V.’s mom had “went through” K.V.’s phone and

found out that a man was walking around their backyard. K.V.’s parents also

discovered pictures of K.V.’s genitalia and electronic messages between K.V. and 

Ruediger on K.V.’s phone. K.V.’s parents reviewed their home security surveillance 

video, which showed Ruediger walking up to the bathroom window. K.V.’s parents 

reported these events to the police, who took K.V.’s phone and began investigating 

Ruediger.

On April 29, 2021, Ruediger messaged K.V. via Snapchat. The police, 

posing as K.V., responded, and ultimately Ruediger agreed to meet K.V. at a bagel 

shop. When Ruediger arrived at the bagel shop, he was arrested.

On May 10, 2021, Ruediger was indicted for illegal use of minor in 

nudity-oriented material in violation of R.C. 2907.323(A)(1) and disseminating 
matter harmful to juveniles in violation of R.C. 2901.31(A)(1). Ruediger filed a 

motion to suppress, and the court held a hearing on this motion on March 29, 2023. 

At the hearing, after the evidence was presented, the court reserved ruling on the 

motion.

The case proceeded to trial, and on April 4, 2023, a jury acquitted 

Ruediger of the first charge and found him guilty of disseminating matter harmful 

to juveniles. The court sentenced Ruediger to 12 months in prison.

Ruediger now appeals raising six assignments of error for our review:

I. Trial court erred when it denied [Ruediger’s] motion to suppress.

II. The trial court erred in denying [Ruediger’s] Criminal Rule 29 

motion on the R.C. 2907.31 disseminating matter harmful to juveniles 

charge.

III. The jury guilty verdict was against the manifest weight of evidence.

IV. The trial court committed plain error in failing to provide a jury 

instruction for an inferior degree of the disseminating matter harmful 

to juveniles charge.

V. Trial court erred allowing pictures into evidence that were not 

accurate re-creations of the scene.

VI. Defense counsel rendered ineffective assistance at trial, in 

derogation of * * * Ruediger’s 6th Amendment right to counsel.

II. Trial Testimony and Evidence

A. Natika A. Anderson

Natika A. Anderson (“Natika”) testified that she is K.V.’s mother, and 

K.V. was 15 years old at the time of trial. Natika lives in Mayfield Heights with K.V. 

and her two other children. In April 2021, when the incident at issue in this case 
happened, K.V. was in the 8th grade. According to Natika, K.V. is “very introverted, 

shy. * * * Just fun-loving, peaceful. He’s my peace maker, if you will.” K.V. had a 

cell phone, on which he did a lot of “gaming,” and his phone had “a lot of different 

apps,” such as Facebook, Instagram, and Snapchat. According to Natika, she 

“look[ed] through [K.V.’s] phone all the time.” 

Natika testified that prior to April 2021, K.V. was diagnosed with 

adolescent epilepsy, and at times, “he’ll be looking at you, but * * * it’s like he’s not 

there.” K.V. also suffers from lupus and attention-deficit disorder. Given the 

medications K.V. was taking for these issues, his “digestive system [was] in turmoil 

and we expected him to be in the bathroom a lot * * *.” According to Natika, 

sometimes K.V. “would be in the bathroom literally three hours.” Natika said the 

family would not monitor K.V.’s cell phone usage when he was in the bathroom. 

On April 25, 2021, Natika got her second Covid booster shot and went 

to bed that evening “around 10:00.” K.V. was in the bathroom. Natika woke up 

“around midnight” and K.V. was still in the bathroom. She said, “Dude, are you still 

in the bathroom?” K.V. answered, “Yeah.” Natika testified that she opened the 

bathroom door just enough to drop her clothes down the laundry chute, “and, for 

whatever reason, just a cold breeze swept over me.” Natika testified that she 

wondered why the bathroom window was open. Natika went into the living room, 

and she and her older daughter, who is K.V.’s sister, “laugh[ed] it off” and talked

about how K.V. “has just discovered porn or something. * * * [B]ecause it’s no way 

you’re spending six, seven hours in the bathroom doing absolutely nothing.” 
Natika and her husband, who is K.V.’s father, woke up the next 

morning and went through K.V.’s phone. That is when they “discovered the 

pictures.” Natika testified in detail as follows: “So it was explicit images of male 

genitalia, including my son’s genitals, fully erect, ejaculating, and conversation, 

which I didn’t see at that point. But I did see pictures of very graphic, disturbing 

pictures for a young man to have on his phone.” According to Natika, the “user 

name” at the top of these pictures, which were posted on Snapchat, was “John R.” 

Natika testified that she also saw “text * * * in blue from John that says, ‘Yes, as soon 

as I saw you.’” Natika and her husband realized that meant “someone was here,”

and she told her husband to “pull the cameras.” 

Natika testified that there are cameras “in our back yard and in 

[K.V.’s] room” because of his seizures. Natika identified video footage taken of her 

back porch in the “early morning” of April 25, 2021. This video showed someone 

“coming on to [the back] porch in the middle of the night.” This person “approached

the downstairs bathroom window,” which is “outside of [K.V.’s] bedroom.” A video 

from another camera on the house showed this person “rapidly exiting.” Natika 

testified that to exit their backyard, the person “would have to climb the fence.”

Natika further testified that in the two videos, which are 18 and 12 seconds long

respectively, the bathroom light is on. Natika and her husband decided to call the 

police because “we had the image of someone being on my property at that time and 

engaging, obviously, with my son.” 
Natika, her husband, and her older daughter asked K.V. to tell them 

what happened. According to Natika, K.V. was “terrified,” and when the police 

arrived, an officer “intervened, and he said, well, obviously he’s not comfortable 

talking to you as parents.” The officer suggested that he take K.V. and his sister to 

his police car, where K.V. could tell his sister what occurred, and the officer would 

listen. 

In June 2021, a Mayfield Heights police officer came to Natika’s 

house to take pictures of K.V., the bathroom, and the backyard. Natika testified that 

the officer took pictures when it was dark outside, so that “it would look like when it 

was nighttime” at the house. Natika gave the police K.V.’s phone and her husband 

signed a release or a waiver. Natika testified that she gave her consent to the police 

to “engage” the individual, who was later identified as Ruediger, after he “was still 

* * * sending messages” to K.V.’s phone. 

Natika testified that she learned that K.V. “was exploring sexuality,”

which was “fine with” her, but she felt like, at 13 years old, K.V. should not have been 

exposed to “adult applications.” K.V. “was on several different sites. Curiosity, I 

guess. Exploring, you know, what he felt may be his lifestyle.” Natika explained that 

the sites were “gay sites, dating apps.”

B. Tonya Anderson

Tonya Anderson (“Tonya”) testified that she is K.V.’s older sister, and 

she lives in Mayfield Heights with her mom, her stepdad, her brother K.V., and her 

younger sister. At the time of trial, Tonya was 26 years old and K.V. was 15 years 
old. Despite the age difference, Tonya and K.V. are “very close.” Tonya testified that 

K.V. has Snapchat on his phone, and within Snapchat is a feature that shows “the 

direct location of where you [are] at.”

Tonya testified that on the morning of April 25, 2021, Natika woke 

her up and told her “there was an incident.” Tonya’s testimony continued:

So I went downstairs and she alerted me that [K.V.] had been talking 

to someone via Snapchat and it was in an explicit nature. And she 

showed me some of the texts. And while I was scrolling, I decided to 

save the messages. And I was shocked because, like I said, [K.V.] 

follows me everywhere, he’s very, very supportive of the things I do and 

he follows me on [social media] and things of that.

Asked why she saved the messages on K.V.’s phone, Tonya replied as 

follows: “Because what I read was extremely explicit and I wanted to be sure that we 

could look back on these, because obviously I knew we were going to have to take 

some action toward what was happening and things like that.” Tonya testified about 

the pictures that she saved from K.V.’s phone. These pictures were “from” someone 

with a user name of “Johnr4487.” Tonya also saved “a conversation between John 

R. and” K.V. According to Tonya, she did not save all the messages or pictures. 

Tonya further testified that she sat in the police car with her brother while he gave a 

statement to the police, and in June 2021, she “made a written statement.”

C. The Electronic Messages

Printouts of the following Snapchat messages between Ruediger and 

K.V. were introduced into evidence. All these messages were saved by Tonya to 

K.V.’s phone. The first message from K.V. was sent sometime on April 24, 2021. 

The remaining messages were sent sometime after midnight on April 25, 2021.
K.V.: So today around 5 pm meet up in my bathroom and we do it then 

you leave and we talk about it when you get home or when I see my dad 

leave the drive way

K.V.: I am going to eat and pretend I am going to in the shower

Ruediger: Yes. As soon as I saw you in the window, I started to get 

hard. When I finally got up to the window and saw how cute you were, 

I was really hard

K.V.: Yes I do have one 

Ruediger: Damn. I wish we could’ve jerked each other off tonight for 

real

K.V.: Do you want to now or later cause I would like a jerk off buddy

Accompanying K.V.’s messages are five pictures of his genitalia. No 

pictures of, or sent by, Ruediger were included among these exhibits. 

D. K.V.

K.V. testified that his date of birth is June 26, 2007, and he was 13 

years old in April 2021. At that time, he was living with his parents and two sisters 

in Mayfield Heights. K.V. had a cell phone, and the social media app Snapchat was 

on his phone. Tonya helped him set up his Snapchat account. K.V. used his phone 

to access “gay dating web sites,” including Grindr, in April 2021. According to K.V., 

Grindr is “mainly used for hookups,” which he described as “[m]eeting up with 

people.” K.V. testified that he had a Grindr account, and, although he was only 13 

years old at the time, “[y]ou had to be older than 18” to set up a profile on Grindr. 

According to K.V., he lied about his age, and his Grindr profile said that he was 18 

years old. K.V. testified that he did not remember his Grindr user name or what the 
photograph he used when setting up his profile looked like. K.V. testified that he 

just remembered it was not a photograph of him. 

K.V. testified that he would “meet” people on Grinder and have 

conversations with them. According to K.V., he would “get rid of” the conversations 

rather than save them. Asked specifically how he “started” his communication with 

Ruediger in April 2021 on Grindr, K.V. replied, “I don’t really remember how that 

started.” K.V. further testified that he “thought” Ruediger messaged him first. The 

conversation between K.V. and Ruediger eventually moved to Snapchat, which was 

Ruediger’s idea. The two began by talking about things they were “interested in”

and their “personal lives.” Asked if the conversation got “sexual,” K.V. answered, 

“At some other point. * * * I’m not sure when, but it was later on during the 

conversation.” K.V.’s testimony continued:

Q: Okay. Before the conversation got sexual, did you reveal any 

personal details about yourself?

A: Yes.

Q: Okay. What personal details did you reveal?

A: My age was actually 13.

Q: Okay. So you told the other person in the conversation on Snapchat 

that you were 13 years old before the conversation got sexual?

A: Yes.

Asked what the “tone” or “gist” of the sexual conversation was, K.V. 

testified that he could not remember. He further testified that he and Ruediger were 

exchanging “[m]ainly photos and videos” when they initially began communicating. 
K.V. testified that he was “pretty sure” he sent the first photo to Ruediger on 

Snapchat. According to K.V., this first photo was “probably of [his] private area.” 

K.V. clarified that the picture was of his penis. K.V. testified that Ruediger did not 

send K.V. photos. K.V. also testified that he sent videos of his penis to Ruediger, but 

that Ruediger did not send “videos back.” K.V. testified that he sent the photos and 

videos to Ruediger because Ruediger told him to. 

During their Snapchat conversation, K.V. and Ruediger discussed 

meeting in person. Asked where they discussed meeting, K.V. answered, “The 

bathroom window” at the “back of the house.” According to K.V., Ruediger knew 

where to go because K.V.’s “location was on” in the Snapchat app. K.V. “only knew”

that Ruediger arrived because Ruediger sent K.V. a picture of the front of K.V.’s 

house with a message that said, “Is this your house?” Asked what happened next, 

K.V. testified as follows: “He went over to the next street, which is — there are two 

streets and it’s divided into two, which is East and West Minor. And so he went to 

the other street, climbed over the fence, and was in the backyard of my house.”

K.V. testified that Ruediger arrived at his house at midnight, and it 

was dark outside. According to K.V., when Ruediger arrived at the house, K.V. saw 

him “only because he waved his phone from — from over where he jumped over the 

fence.” K.V. was standing in the first-floor bathroom with the light on. Ruediger 

came to the bathroom window, which is in the back of the house. K.V. testified that 

the blinds on the bathroom window were “shut,” but he could see Ruediger through 

the window. Asked to describe who he saw, K.V. said, “Well, the only thing that I 
knew, from — from what I saw, was that he was wearing a suit, because he told me 

that he was.”

Asked how long Ruediger stayed at the window, K.V. replied, “He is 

not there for long, because I told him to leave.” K.V. testified that Ruediger was 

there for a “few seconds” before K.V. “texted him to leave.” Ruediger “climbed back 

over the fence and left.” According to K.V., he and Ruediger did not speak at all that 

night. 

K.V. woke up the next morning to his mom screaming at him that 

“there was a dude at the house.” K.V.’s parents had his phone, and Tonya became 

involved because she “knew more about Snapchat.” The police came to the house 

that day and talked to K.V. According to K.V., “they wanted information on what 

happened the night before and — that would help them lead to whoever came to the 

house.” K.V. identified the electronic Snapchat messages sent between him and 

Ruediger, who went by the username of “Johnr4487.” 

According to K.V., the pictures that the police took of him sitting in 

the bathroom were taken with the bathroom light on. K.V. testified that the 

bathroom light was also on the night Ruediger came to the window. K.V. testified 

that the police officer was standing outside in the backyard “in the same place” that 

Ruediger was standing when the officer took the picture of K.V. through the 

bathroom window. K.V. further testified that he could see his face in the picture that 

the officer took. K.V. was sitting on the toilet when the picture was taken, and he 

was sitting on the toilet when Ruediger came to the window. 
During K.V.’s testimony, the state played the surveillance video of his 

backyard from the night at issue showing Ruediger approaching the bathroom 

window. K.V. testified that he could see in the video that the bathroom light was on,

and the bathroom window blinds were open. The man stopped at the bathroom 

window for a few seconds, walked down the stairs of the patio to leave, and climbed 

over the fence. 

On cross-examination, K.V. testified that he did not remember what 

date of birth he used to set up his Grindr profile, but he calculated a date of birth 

that made him “at least 18 years old.” Defense counsel asked K.V. what he meant 

when he testified on direct examination about “meeting up with people” on Grindr, 

and K.V. answered, “Sex.”

Defense counsel questioned K.V. about when the police interviewed 

him while he and Tonya were in the police car. 

Q: Do you remember [the officer] asking you: Did he, meaning 

[Ruediger] ever ask how old you were? * * *

A: Yes.

Q: What was your response?

A: I told him that I was 13.

Q: You told [the officer] in his police cruiser that you told [Ruediger] 

that you were 13?

A: Yes.

Defense counsel played the body camera video from the police officer 

who interviewed K.V. This video was shown only to K.V., using a laptop and 
headphones. The body camera video was not played for the jury, and it was not 

introduced into evidence. After the video, the following colloquy occurred between 

defense counsel and K.V.:

Q: Do you remember [the officer] asking you: Did you ever tell 

[Ruediger] what your age really was?

A: I did eventually.

* * *

Q: After listening to that small clip, do you now remember a different 

response that you provided us here in court?

A: Yes.

Q: And what was your response to [the officer] the second time he 

asked you: Did you ever tell him in your conversation how old you 

were?

A: I said: I never did. 

On redirect examination, K.V. explained that he “eventually” told 

Ruediger that he was 13 years old when their conversation “moved to Snapchat.” 

K.V. also explained that the picture he put on his Grindr profile was not of a person. 

Rather, it was “[j]ust words” from “the title of [a] TV show.”

K.V. clarified that when he was in the bathroom that night, “at first”

he was standing, and then he sat down. K.V. also clarified that the blinds on the 

bathroom window “were so I could see out” on the night at issue.

On recross-examination, K.V. testified that when he was talking to the 

police officer in the car, they were discussing the conversations he and Ruediger had 
“through Snapchat.” Asked if he discussed his and Ruediger’s Grindr conversation 

with the officer, K.V. replied, “I don’t think I did.”

E. Gary Stein

Gary Stein (“Stein”) testified that he was a retired special investigator 

for the Cuyahoga County Prosecutor’s Office. Stein’s training was in digital 

forensics. According to Stein, “most of the work I did was with cell phones.” In 

relation to this case, Stein was asked to examine two cell phones that belonged to 

Ruediger. Stein testified that both phones “were never unlocked,” which means he 

was unable to “get into” photos or videos. 

F. Filipp Goykhberg

Filipp Goykhberg (“Off. Goykhberg”) testified that he is a patrol 

officer for the Mayfield Heights Police Department. Off. Goykhberg was involved in 

Ruediger’s case because he is “a younger officer,” and “they just needed help with 

Snapchat.” Off. Goykhberg testified that he was working with K.V.’s phone and 

Snapchat account. His “goal * * * was just to have [Ruediger] come out to Mayfield 

Heights to meet the 13-year-old juvenile at a specific location.” According to Off. 

Goykhberg, there was nothing sexual about his (while posing as K.V.) Snapchat 

conversation with Ruediger, which occurred on April 29, 2021, between 3:43 p.m. 

and 3:52 p.m. 

G. Officer Josh Bayer

Mayfield Heights Police Department Patrol Officer Josh Bayer (“Off. 

Bayer”) testified that he received a call at approximately 8:30 a.m. on April 25, 2021,
to respond to a “possible sex crime against a child.” When Off. Bayer arrived at

K.V.’s house, K.V.’s parents showed Off. Bayer the two security-camera videos of the 

backyard. Off. Bayer testified that the first video showed a tall white male wearing 

a suit who “came from the back yard, went up the stairs to the deck and approached 

a window at the — the light was on in the room.” Off. Bayer further testified that the 

second video showed the same man “exiting from the deck at the bottom of the stairs 

* * *.” 

Off. Bayer “took [K.V.] outside and had him sit in the front seat of 

[the] patrol car and his sister had a seat in the back seat of [the] patrol car.” Off. 

Bayer brought K.V.’s cell phone with them and began to interview K.V. According 

to Off. Bayer, K.V.’s phone showed “social media apps that had conversation 

between [K.V.] and a subject.” Off. Bayer identified the “photographs of the 

conversation” that he “saw on [K.V.’s] phone [in] Snapchat on April 25th.” Off. 

Bayer testified that the “suspect” in this case had a Snapchat username of 

“Johnr4487.”

According to Off. Bayer, in addition to the Snapchat conversation he 

saw on K.V.’s phone, he also saw “[p]ornographic photos, photos of erect penises.” 

Off. Bayer determined, through the conversation on K.V.’s phone, that one of 

penises was K.V.’s

H.Sergeant Donald Oberdoester

Sergeant Donald Oberdoester (“Sgt. Oberdoester”), of the Mayfield 

Heights Police Department, testified that he was working as a “detective and 
sergeant” when he was assigned to the instant case on April 26, 2021. Sgt. 

Oberdoester testified that he learned the following after reading Off. Bayer’s report: 

“I learned that [K.V.’s] parents had called the police department, they were 

concerned that they found things on their son’s phone. And as they went through 

the phone by the text messages, that it appears somebody came to their house the 

previous night and so they called the police.” Sgt. Oberdoester further testified that 

the “user name * * * for the Snapchat account of the person that was communicating 

with their child was johnr4487.” Sgt. Oberdoester investigated that username and 

ultimately connected it to Ruediger. 

The police received permission from K.V.’s parents to “search [K.V.’s] 

phone and use [K.V.’s] phone.” On April 29, 2021, Sgt. Oberdoester had not yet 

“done anything” with K.V.’s phone, but he “noticed that [the] phone had received a 

text message from johnr4487. And if I remember right, it said, ‘Hey, what’s up?’ Or 

something like that.” Sgt. Oberdoester called Off. Goykhberg to assist with 

responding to the message. After some back and forth between the police, posing as 

K.V., and Ruediger, they decided to meet at Bruegger’s Bagels, which is where the 

police arrested Ruediger.

Sgt. Oberdoester next testified about the April 29, 2021 audio and 

video recording of Ruediger’s interrogation at the Mayfield Heights Police station. 

In this recording, Ruediger acknowledged going up to the back window of K.V.’s 

house. Sgt. Oberdoester asked Ruediger about K.V.’s age, and Ruediger said that he 

“thought maybe 16 or 17.” Asked if Ruediger saw K.V.’s face, Ruediger answered, “I 
guess, yeah.” Ruediger admitted that he “got a clear look at” K.V., who was sitting 

on the toilet at the time, although he said K.V. was looking down at his phone, and 

Ruediger did not get a direct look at his full face. However, moments later during 

this video, Ruediger said that he “never saw his face I guess.”

In the video, Ruediger stated the following: “Is there a chance I 

thought he wasn’t 18 and was closer to 16, yeah. * * * If you would have told me he 

was 15, I would have agreed.” Ruediger also admitted that he “sent some dick pics”

to K.V. and he “received dick pics from” K.V. 

III. Law and Analysis

A. Motion to Suppress

In his first assignment of error, Ruediger argues that the trial court 

erred by denying his motion to suppress the statements he made to the police during 

his detention. Specifically, Ruediger argues that the police violated various 

constitutional and statutory rights when they “held him overnight without allowing 

him to call anyone, including an attorney * * *.” Ruediger argues that his Fifth 

Amendment right to remain silent and right against self-incrimination were 

violated; his Fourteenth Amendment right to due process was violated; and his right 

to communicate with an attorney under R.C. 2935.20 was violated. Ruediger further 

argues that, as a result of the police holding “him overnight, without charging him 

and without allowing him access to a phone,” he did not knowingly, voluntarily, and 

intelligently waive his Miranda rights. 
1. Suppression Hearing Testimony

a. Detective Mikolay

Detective Matthew Mikolay (“Det. Mikolay”) testified that he is 

employed by the Mayfield Heights Police Department. On the date of the offense in 

the case at hand, Det. Mikolay was a patrol officer. On April 29, 2021, Det. Mikolay 

was in a police vehicle with another officer “down the street from what turned out to 

be the location where * * * Ruediger was stopped.” Det. Mikolay testified that he 

“understood” that Ruediger “was involved in an inappropriate relationship with a 

13-year-old who was a resident” of Mayfield Heights. Det. Mikolay was present 

when Ruediger “showed up” at the arranged meeting place, which was a Bruegger’s 

Bagels. According to Det. Mikolay, he asked Ruediger “to step out of the vehicle, 

keep his hands where we could see them. [Ruediger] was eventually placed in the 

back of a police cruiser and after a short period of time I did advise him of his 

Miranda warnings.” The prosecutor played video footage from Det. Mikolay’s body 

camera on the day in question showing Det. Mikolay advising Ruediger of his 

Miranda rights.

Det. Mikolay and another officer brought Ruediger back to the police 

station to “begin the booking process.” During this process, Det. Mikolay asked 

Ruediger “if he had any questions, concerns, or complaints, to which he replied, no.” 

This interaction was also captured on Det. Mikolay’s body camera, and the video was 

played for the court. The video showed another officer “explaining [to Ruediger] the 

process of what was gonna take[] place from that point on. He explained to 
[Ruediger] the detectives were going to talk to him the following day and he would 

have to spend the night in the Mayfield Heights jail and he was not allowed to make 

any phone calls at that point.” According to Det. Mikolay, the reason Ruediger was 

not allowed to make a phone call at that point was “probably * * * to preserve 

evidence.” 

Asked “when did * * * Ruediger ask to make a phone call [or] call his 

attorney,” Det. Mikolay answered, “He never did.” According to Det. Mikolay, “once 

the booking process is complete, the individual that’s processed should be allowed 

two phone calls.” Det. Mikolay further explained that when he said Ruediger was 

“not allowed to have phone calls,” this did not include calling an attorney.

On cross-examination, Ruediger’s counsel asked Det. Mikolay if there 

were times, such as when he walked out of the booking room, when he would have 

been unable to hear what Ruediger and the other officer were saying. Det. Mikolay 

answered that this was “correct.” Det. Mikolay was additionally asked if he “may be 

unaware as to whether or not [the other officer] asked * * * Ruediger if he currently 

had an attorney” or if Ruediger answered that he did not have an attorney and 

“would need a phone call to [get] one.” Det. Mikolay responded, “I wouldn’t know 

that [if] I wasn’t in the room * * * at that time.” 

b. Sergeant Oberdoester

Sgt. Oberdoester testified that he was the lead detective on Ruediger’s 

case, which was assigned to him on April 26, 2021, and he confiscated K.V.’s cell 

phone as evidence. K.V.’s father gave Sgt. Oberdoester permission to search and use 
K.V.’s phone. After searching the phone, Det. Oberdoester used it to communicate 

with Ruediger and set up a meeting at the designated Bruegger’s Bagels. Ruediger 

“showed up” as arranged, and the police arrested him, towed his vehicle, and 

transported Ruediger to the police station for booking. 

According to Sgt. Oberdoester, he was not part of Ruediger’s booking 

process, although he made the decision “about [Ruediger] having phone calls.” Sgt. 

Oberdoester explained that “[t]his was an ongoing investigation, [and] it was still 

early on. * * * But if what our victim was telling us about exchanging contraband on 

their cell phones, it was reasonable to believe that there would be contraband found 

on home computers, as well. So we didn’t want [Ruediger] to make a phone call to 

someone at home that could possible compromise that evidence.” 

Sgt. Oberdoester testified that, according to policy, suspects are 

“allowed to make phone calls after the booking procedure”; however, “an exception 

was made to the policy” in Ruediger’s case because “we didn’t want evidence to be 

destroyed * * *.” Sgt. Oberdoester further testified that this exception happens more 

often than not. 

Sgt. Oberdoester also testified that he read the Miranda rights to 

Ruediger after Ruediger was booked, and Ruediger signed a “Miranda warning 

waiver.” This written waiver was introduced into evidence and is consistent with 

Sgt. Oberdoester’s testimony. Part of this written waiver that Ruediger read and 

signed includes an explanation that Ruediger was able to call an attorney. According 

to Sgt. Oberdoester, Ruediger “was asked if he wanted an attorney,” but Ruediger 
did not ask for an attorney. Rather, Ruediger made a statement to the police that 

was recorded on video. 

On cross-examination, Sgt. Oberdoester testified that despite the 

written waiver, Ruediger was told by two law enforcement officers that he was not 

permitted to make phone calls. 

As part of his investigation into the incident at issue in this case, Sgt. 

Oberdoester viewed the “surveillance video from the victim’s house, and * * * did 

computer searches trying to figure out this e-mail address or the tag name with the 

numbers on it.” According to Sgt. Oberdoester, he was trying to find out who 

“johnr4487” was. The sergeant’s research led him to Ruediger. 

c. Chief Mele

Mayfield Heights Chief of Police Anthony Mele (“Chief Mele”) 

testified that he became involved in the Ruediger investigation to “assist [in] 

affecting [sic] an arrest * * *.” Chief Mele’s role “was going to be one of the 

uniformed officers in a parked police car * * *” at the designated meeting place. Chief 

Mele had no “dialogue” with Ruediger “at the scene,” but he transported him back 

to the station after the arrest. Chief Mele was also “one of the booking officers.” 

Chief Mele testified that Det. Mikolay read Ruediger his Miranda rights. Chief Mele 

was aware that a decision was made not to allow Ruediger to make phone calls 

because he “was concerned that, if [Ruediger] made phone calls, he may contact 

someone at his residence to possibly destroy evidence.” According to Chief Mele, 
Ruediger “never asked for an attorney. Had he, we certainly would have given him 

a phone call.” 

On cross-examination, Chief Mele testified that he did not recall 

whether anyone asked Ruediger if he had an attorney, and Chief Mele did not recall 

Ruediger saying that he did not have an attorney, “but would need to call one.” 

According to Chief Mele, when Sgt. Oberdoester told Ruediger that he was not 

allowed to make phone calls, Sgt. Oberdoester “wasn’t specific. But I knew what he 

meant. I knew that he meant personal phone calls because we would never deny 

him a call to an attorney.” Chief Mele testified that Ruediger “may not” have known 

this distinction, “[b]ut he was also given the opportunity to ask questions. He was 

also read his Miranda rights before that and never requested an attorney.” 

After listening to the testimony presented at the suppression hearing, 

the trial court found that Ruediger “never asked to call his attorney or anyone else. 

* * * So * * * after booking he was allowed to make two calls and he declined. They 

asked him if he had any complaints or anything, he answered no.” The court further 

stated that it did not “find any reason to suppress this — any testimony in this case 

that I’ve heard thus far.” However, the court stated that it could not “rule yet”

because it had not “heard it all.” 

2. Standard of Review

In State v. Burnside, 100 Ohio St.3d 152, 2003-Ohio-5372, 797 

N.E.2d 71, ¶ 8, the Ohio Supreme Court held the following:

Appellate review of a motion to suppress presents a mixed question of 

law and fact. When considering a motion to suppress, the trial court 
assumes the role of trier of fact and is therefore in the best position to 

resolve factual questions and evaluate the credibility of witnesses. 

State v. Mills (1992), 62 Ohio St.3d 357, 366, 582 N.E.2d 972. 

Consequently, an appellate court must accept the trial court’s findings 

of fact if they are supported by competent, credible evidence. State v. 

Fanning (1982), 1 Ohio St.3d 19, 1 OBR 57, 437 N.E.2d 583.

Accepting these facts as true, the appellate court must then 

independently determine, without deference to the conclusion of the 

trial court, whether the facts satisfy the applicable legal standard.

3. Waiver of Miranda Rights

“A suspect in police custody ‘must be warned prior to any questioning 

that he has the right to remain silent, that anything he says can be used against him 

in a court of law, that he has the right to the presence of any attorney, and that if he 

cannot afford an attorney one will be appointed for him prior to any questioning if 

he so desires.’” State v. Lather, 110 Ohio St.3d 270, 2006-Ohio-4477, 853 N.E.2d 

279, ¶ 6, quoting Miranda v. Arizona, 384 U.S. 436, 479, 86 S.Ct. 1602, 16 L.Ed.2d 

694 (1966).

The United States Supreme Court has explained that Miranda rights 

can be waived, and a valid waiver has two aspects:

First, the relinquishment of the right must have been voluntary in the 

sense that it was the product of a free and deliberate choice rather than 

intimidation, coercion, or deception. Second, the waiver must have 

been made with a full awareness of both the nature of the right being 

abandoned and the consequences of the decision to abandon it. Only if 

the “totality of the circumstances surrounding the interrogation”

reveals both an uncoerced choice and the requisite level of 

comprehension may a court properly conclude that the Miranda rights 

have been waived.

(Citation omitted.) Moran v. Burbine, 475 U.S. 412, 421, 106 S.Ct. 1135, 89 L.Ed.2d 

410 (1986). The Ohio Supreme Court has further explained that a “suspect’s 
decision to waive his Fifth Amendment privilege against compulsory selfincrimination is made voluntarily absent evidence that his will was overborne and 

his capacity for self-determination was critically impaired because of coercive police 

conduct.” State v. Dailey, 53 Ohio St.3d 88, 91, 559 N.E.2d 459 (1990).

4. Right to Make a Phone Call

To support his argument that the police violated his “right to make a 

phone call,” Ruediger cites R.C. 2935.20, which governs a suspect in a criminal 

investigation’s right to counsel. This statute states as follows: 

After the arrest, detention, or any other taking into custody of a person, 

with or without a warrant, such person shall be permitted forthwith 

facilities to communicate with an attorney at law of his choice who is 

entitled to practice in the courts of this state, or to communicate with 

any other person of his choice for the purpose of obtaining counsel. 

Such communication may be made by a reasonable number of 

telephone calls or in any other reasonable manner. Such person shall 

have a right to be visited immediately by any attorney at law so 

obtained who is entitled to practice in the courts of this state, and to 

consult with him privately. No officer or any other agent of this state 

shall prevent, attempt to prevent, or advise such person against the 

communication, visit, or consultation provided for by this section.

In State v. Griffith, 74 Ohio St.3d 554, 555, 660 N.E.2d 710 (1996), 

the Ohio Supreme Court answered a certified question from the Fifth District Court 

of Appeals, ruling that suppression of the results of a breathalyzer test “because of 

police failure to comply with * * * R.C. 2935.20” is not an appropriate remedy. See 

also State v. Turner, 11th Dist. Portage No. 2007-P-0090, 2008-Ohio-3898, ¶ 30 

(holding that “the exclusionary rule is not a remedy for a violation of R.C. 2935.20”).
5. Application of the Law

In applying Griffith to the case at hand, we conclude that suppression 

of Ruediger’s statements to police is not the appropriate remedy for the alleged 

violation of R.C. 2935.20. We further find no evidence in the record to support 

Ruediger’s argument that his Miranda waiver was not made knowingly, voluntarily, 

and intelligently. Accordingly, Ruediger’s first assignment of error is overruled.

B. Sufficiency of the Evidence and Manifest Weight of the Evidence

In his second assignment of error, Ruediger argues that his conviction 

for disseminating matter harmful to juveniles is based on insufficient evidence. 

Specifically, Ruediger argues that the state presented insufficient evidence that the 

“electronic messaging” was obscene; he had “reason to believe” K.V. was a juvenile; 

and he acted recklessly. 

In Ruediger’s third assignment of error, he argues that his conviction 

for disseminating matter harmful to juveniles is against the manifest weight of the 

evidence in the same three aspects as specified in his second assignment of error: 

the “electronic messaging” was not obscene; he did not have “reason to believe” K.V.

was a juvenile; and he did not act recklessly. 

To reiterate, Ruediger sent the following electronic messages to K.V. 

after seeing K.V. in the bathroom window: “As soon as I saw you in the window, I 

started to get hard. When I finally got up to the window and saw how cute you were, 

I was really hard[.]” and “Damn. I wish we could’ve jerked each other off tonight for 

real[.]”
“[A]n 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 defendant’s guilt beyond a reasonable doubt.” State v. Jenks, 61 Ohio St.3d 

259, 273, 574 N.E.2d 492 (1991). “A challenge to the sufficiency of the evidence 

supporting a conviction requires the court to determine whether the prosecution has 

met its burden of production at trial.” State v. Toby, 8th Dist. Cuyahoga No. 106306, 

2018-Ohio-3369, ¶ 19. That 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.” Jenks at paragraph one 

of the syllabus. “In essence, sufficiency is a test of adequacy. Whether the evidence 

is legally sufficient to sustain a verdict is a question of law.” State v. Thompkins, 78 

Ohio St.3d 380, 386, 678 N.E.2d 541 (1997).

A manifest-weight-of-the-evidence challenge “addresses the 

evidence’s effect of inducing belief. * * * In other words, a reviewing court asks 

whose evidence is more persuasive — the state’s or the defendant’s?” State v. 

Wilson, 113 Ohio St.3d 382, 2007-Ohio-2202, 865 N.E.2d 1264, ¶ 25. “When a court 

of appeals reverses a judgment of a trial court on the basis that the verdict is against 

the weight of the evidence, the appellate court sits as the ‘thirteenth juror’ and 

disagrees with the factfinder’s resolution of the conflicting testimony.” Thompkins

at 387. Reversing a conviction under a manifest weight theory “should be exercised 

only in the exceptional case in which the evidence weighs heavily against the 
conviction.” State v. Martin, 20 Ohio App.3d 172, 175, 485 N.E.2d 717 (1st 

Dist.1983).

1. Disseminating Matter Harmful to Juveniles

R.C. 2907.31(A)(1) states that “[n]o person, with knowledge of its 

character or content, shall recklessly * * * [d]irectly sell, deliver, furnish, 

disseminate, provide, exhibit, rent, or present to a juvenile * * * any material or 

performance that is obscene or harmful to juveniles * * *.” A violation of this statute 

is a fifth-degree felony if the material is obscene.

The legislature further explained that a “person * * * disseminates * * 

* material * * * to a juvenile * * * in violation of this section by means of an electronic 

method of remotely transmitting information if the person knows or has reason to 

believe that the person receiving the information is a juvenile * * *.” 

R.C. 2907.31(D)(1). 

In R.C. 2907.01(I), the legislature defined “juvenile” as follows: “an 

unmarried person under the age of eighteen.” Furthermore, in R.C. 2907.01(E), the 

legislature defined “harmful to juveniles” as follows: 

“Harmful to juveniles” means that quality of any material or 

performance describing or representing nudity, sexual conduct, sexual 

excitement, or sado-masochistic abuse in any form to which all of the 

following apply:

(1) The material or performance, when considered as a whole, appeals 

to the prurient interest of juveniles in sex.

(2) The material or performance is patently offensive to prevailing 

standards in the adult community as a whole with respect to what is 

suitable for juveniles.
(3) The material or performance, when considered as a whole, lacks 

serious literary, artistic, political, and scientific value for juveniles.

2. Obscenity

First, Ruediger argues that the messages he sent to K.V. were “sexual”

but not obscene. R.C. 2907.01(F) states that content is “obscene” if:

(1) Its dominant appeal is to prurient interest;

(2) Its dominant tendency is to arouse lust by displaying or depicting 

sexual activity, masturbation, sexual excitement, or nudity in a way that 

tends to represent human beings as mere objects of sexual appetite 

* * *.

The Ohio Supreme Court stated the following regarding “prurient 

interest”:

A “prurient” interest is not the same as a candid, normal or healthy 

interest in sex, rather it is a ‘“shameful or morbid interest in nudity, sex, 

or excretion * * * [which] goes substantially beyond customary limits of 

candor in description or representation of such matters * * *.’”

Urbana ex rel. v. Newlin, 43 Ohio St.3d 109, 116, 539 N.E.2d 140 (1989), quoting

Roth v. United States, 354 U.S. 476, 487, 77 S.Ct. 1304, 1 L.Ed.2d 1498 (1957), fn. 

20 (quoting the definition of the A.L.I. Model Penal Code, Section 207.10(2) [Tent. 

Draft No. 6, 1957]).

3. Mens Rea — Recklessly

Next, Ruediger argues that the state “did not present evidence 

sufficient to prove that [he] acted recklessly when messaging K.V.” and “he had no 

reason to believe that K.V. was a juvenile.”

R.C. 2901.22(C) states that a 
person acts recklessly when, with heedless indifference to the 

consequences, the person disregards a substantial and unjustifiable 

risk that the person’s conduct is likely to cause a certain result or is 

likely to be of a certain nature. A person is reckless with respect to 

circumstances when, with heedless indifference to the consequences, 

the person disregards a substantial and unjustifiable risk that such 

circumstances are likely to exist.

4. Analysis

The gist of Ruediger’s arguments under his second and third 

assignments of error is twofold. First, that the electronic messages he sent K.V. are 

not obscene, and second that he did not know, or act recklessly in that regard, that 

K.V. was a juvenile. We review these arguments together. 

As stated earlier in this opinion, K.V. testified that he told Ruediger 

he was 13 years old.

Q: Okay. Before the conversation got sexual, did you reveal any 

personal details about yourself?

A: Yes.

Q: Okay. What personal details did you reveal?

A: My age was actually 13.

Q: Okay. So you told the other person in the conversation on Snapchat 

that you were 13 years old before the conversation got sexual?

A: Yes.

However, evidence was also presented that K.V. told Off. Bayer that 

he did not tell Ruediger his age. 

K.V. further testified that when Ruediger arrived at K.V.’s house on 

April 25, 2021, Ruediger “went to the other street, climbed over the fence, and was 
in the backyard of my house.” K.V. was at the bathroom window, and the bathroom 

light was on. K.V. could see Ruediger in the backyard because the light from 

Ruediger’s phone was illuminated. Ruediger walked across the patio and 

approached the bathroom window. According to K.V., Ruediger “just stands there 

for a few seconds.” K.V. further testified that Ruediger was close enough for him to 

touch if the window and screen had not been there. 

K.V. testified that Ruediger was not there long because K.V. texted 

Ruediger and told him to leave. According to K.V., Ruediger “just walked away[,] 

climbed back over the fence and left.” 

Evidence in the record shows that Ruediger sent K.V. two messages 

in which Ruediger admitted to seeing K.V. in the bathroom window: “I saw you in 

the window * * *”; and “* * *I finally got up to the window and saw how cute you 

were * * *.” Evidence in the record also shows that K.V. referred to his dad leaving 

the driveway and pretending to be in the shower in the messages he sent to Ruediger.

Additionally, the video of Ruediger’s police interrogation reveals that 

he admitted that he thought K.V. could have been 15, 16, or 17 years old. 

Upon review, we find sufficient evidence in the record to support 

Ruediger’s disseminating-matter-harmful-to-juveniles conviction. K.V. testified 

that he told Ruediger he was 13 years old, and Ruediger told the police he thought 

K.V. could have been under 18. The messages at issue refer to sexual conduct and 

sexual excitement, which, in this case, are obscene for the very reason that they were 
sent to a juvenile. This evidence, if believed, is enough to convince a reasonable 

person of Ruediger’s guilt. 

Our analysis of Ruediger’s manifest-weight-of-the-evidence 

challenge turns on the credibility of the witnesses and evidence presented at trial. 

Ohio courts have uniformly held that “the weight to be given the evidence and the 

credibility of the witnesses are primarily for the trier of the facts.” State v. DeHass, 

10 Ohio St.2d 230, 227 N.E.2d 212 (1967). The factfinder “is in the best position to 

observe the witnesses’ demeanor, voice inflection, and mannerisms, in order to 

determine the credibility of each witness.” State v. Dowd, 8th Dist. Cuyahoga 

No. 80990, 2002-Ohio-7061, ¶ 23. “Furthermore, a trier of fact is free to believe all, 

some, or none of the testimony of each witness appearing before it.” State v. 

Williams, 2019-Ohio-794, 132 N.E.3d 1233, ¶ 28 (8th Dist.).

In State v. Koran, 8th Dist. Cuyahoga No. 110923, 2022-Ohio-2410, 

¶ 52, this court affirmed the defendant’s disseminating-matter-harmful-to-juveniles 

conviction under circumstances somewhat similar to the case at hand. Obscenity 

was not at issue in Koran, because the messages he sent to the juvenile victim were 

sexually explicit photographs. However, Koran disputed whether he knew that the 

recipient of the pictures was allegedly 15 years old. 

The state put forth evidence showing that “Jay” sent Koran a message 

that “Jay” was 15 years old. Koran does not dispute this. Rather, Koran 

argues that he did not see the message and, therefore, had no 

knowledge of “Jay’s” purported age and did not act recklessly in that 

regard.

* * * 
Having reviewed the record in the case at hand, we cannot say that the 

trial court, acting as the factfinder, lost its way by convicting Koran of 

the offenses with which he was charged. The trial court heard the 

state’s evidence, as well as the state’s position that Koran knew “Jay’s”

age or acted recklessly in that regard. The trial court also heard Koran’s 

testimony that he did not know “Jay’s” age, because he did not see the 

message at issue, and Koran’s explanation of why he may not have seen 

this message. This is not the exceptional case, which creates “such a 

manifest miscarriage of justice that the conviction must be reversed 

and a new trial ordered.” Thompkins, 78 Ohio St.3d at 387, 678 N.E.2d 

547.

Koran at ¶ 50, 52.

Upon review, we find that the weight of the evidence in the record 

supports Ruediger’s conviction. We note that K.V.’s testimony at trial that he told 

Ruediger his age is inconsistent with a recording that revealed, on the morning after 

the offenses occurred, he told Off. Bayer that he did not tell Ruediger his age. We 

also note that K.V. was 13 years old when the offenses occurred, and evidence in the 

record showed that he was shy and uncomfortable talking about what happened. 

Notwithstanding this inconsistency, other evidence in the record 

supports a finding that Ruediger knew K.V. was a juvenile. K.V. lived with his 

parents, told Ruediger that he was pretending to take a shower so he could meet 

Ruediger at the bathroom window, and told Ruediger that he could not talk until his 

dad left the driveway. Ruediger parked on a different street than the one on which 

K.V. lived, jumped a fence, came through K.V.’s backyard, and met at K.V.’s 

bathroom window. Ruediger also admitted to seeing K.V. in the bathroom window. 

Our review of the pictures that the police took shows that K.V. is clearly a juvenile, 

and Ruediger admitted to the police that he thought K.V. could be a juvenile. 
Having determined that Ruediger knew, or acted recklessly in that 

regard, that K.V. was a juvenile, we also conclude that electronic messages at issue 

were obscene because they were sexual in nature, and they were sent to a juvenile. 

The jury did not lose its way in convicting Ruediger of disseminating matter harmful 

to juveniles. Accordingly, Ruediger’s second and third assignments of error are 

overruled. 

C. Jury Instruction — Inferior Offense

In Ruediger’s fourth assignment of error, he argues that “the trial 

court committed plain error in failing to provide a jury instruction for an inferior 

degree of the disseminating-matter-harmful-to-juveniles charge.” Ruediger 

specifically argues that “if the material [disseminated] is not obscene, th[e]n the 

violation is a first-degree misdemeanor * * *.” 

Pursuant to Crim.R. 30(A), “[o]n appeal, a party may not assign as 

error the giving or the failure to give any instructions unless the party objects before 

the jury retires to consider its verdict, stating specifically the matter objected to and 

the grounds of the objection.” Failure to object to jury instructions “waives all but 

plain error.” State v. Owens, 162 Ohio St.3d 596, 2020-Ohio-4616, 166 N.E.3d 1142 

¶ 7.

As stated previously in this opinion, R.C. 2907.31(A)(1) provides that 

“[n]o person, with knowledge of its character or content, shall recklessly * * * 

[d]irectly sell, deliver, furnish, disseminate, provide, exhibit, rent, or present to a 

juvenile * * * any material or performance that is obscene or harmful to juveniles 
* * *.” Pursuant to R.C. 2907.31(F), “[i]f the material or performance involved is 

harmful to juveniles * * * a violation of this section is a misdemeanor of the first 

degree.” However, the statute also states that “[i]f the material or performance 

involved is obscene, * * * a violation of this section is a felony of the fifth degree.” 

Our review of the record reveals that Ruediger was indicted for 

disseminating matter harmful to juveniles, a fifth-degree felony, based on the 

material being obscene. Ruediger’s indictment specifically references “material or 

performance that is obscene.” His indictment does not state that the material is 

“harmful to juveniles.” 

Our review of the trial court’s instructions to the jury in the case at 

hand shows that the court stated, in part, as follows: “Before you can find the 

defendant guilty of disseminating matter harmful to juveniles, you must find beyond 

a reasonable doubt that * * * Ruediger * * * did recklessly * * * disseminate * * * to 

[K.V.] * * * material or performance that is obscene * * *.” In other words, the court 

mirrored the language in Ruediger’s indictment, omitting the alternative that the 

material involved is “harmful to juveniles.”

We previously determined that the evidence presented to the jury 

supported the finding that the messages at issue in this case are obscene. 

Furthermore, the jury found Ruediger guilty of the degree of the offense with which 

he was charged based on the instructions from the court. 

Accordingly, the court did not err by failing to instruct the jury on an 

inferior degree of disseminating matter harmful to juveniles. Compare State v. 
Thomas, 40 Ohio St.3d 213, 216, 533 N.E.2d 286 (1988) (holding that a jury 

instruction “on the lesser included offense is required only where the evidence 

presented at trial would reasonably support both an acquittal on the crime charged 

and a conviction upon the lesser included offense”). Ruediger’s fourth assignment 

of error is overruled. 

D. Admissibility of Pictures into Evidence

In his fifth assignment of error, Ruediger argues that the “court erred 

[by] allowing pictures into evidence that were not accurate re-creations of the 

scene.”

We review the admissibility of evidence for an abuse of discretion. 

State v. Issa, 93 Ohio St.3d 49, 64, 752 N.E.2d 904 (2001). “Demonstrative evidence 

is admissible if it satisfies the general standard of relevance set forth in Evid.R. 401 

and if it is substantially similar to the object or occurrence that it is intended to 

represent.” State v. Jones, 135 Ohio St.3d 10, 2012-Ohio-5677, 984 N.E.2d 948, 

¶ 82. Evid.R. 401 states that relevant evidence is “evidence having any tendency to 

make the existence of any fact that is of consequence to the determination of the 

action more probable or less probable than it would be without the evidence.” 

Additionally, the “admission of demonstrative evidence is subject to Evid.R. 403.” 

Jones at ¶ 82. Evid.R. 403(A) states that “[a]lthough relevant, evidence is not 

admissible if its probative value is substantially outweighed by the danger of unfair 

prejudice, or confusion of the issues, or of misleading the jury.” 
Specifically, Ruediger argues that testimony established the 

bathroom window was closed and the blinds were down when the incident occurred 

and this obstructed the view into the bathroom. Additionally, Ruediger argues it 

was dark outside when the incident occurred and K.V. is not visible through the 

bathroom window in the surveillance video. 

According to Ruediger, the photographs that the police took that 

were introduced into evidence differ from the testimony describing the scene in the 

following ways: in the re-created photographs, the bathroom window was open and 

the screen was removed; “the bathroom door is open and the hallway light is on, 

providing more light into the bathroom than on the night in question”; “K.V. is 

looking straight out the window”; “the pictures do not show that the exterior 

floodlight [was] illuminated * * * .”

Our review of the trial testimony shows that K.V. testified about the 

surveillance video that was introduced into evidence showing Ruediger in his 

backyard approaching the bathroom window. According to K.V., the video shows 

that it was dark outside, the bathroom lights were on, and the blinds on the window 

were open when Ruediger was there. K.V. also testified about the photographs that 

the police took that were introduced into evidence. According to K.V., the 

photographs show that it was dark outside and the bathroom light was on. We also 

note that K.V. testified that he was sitting on the toilet when Ruediger came to the 

window, and he was sitting on the toilet when the police took the photograph.
Upon review, we find that the photographs admitted into evidence 

showed the bathroom window under conditions that were substantially similar to 

the conditions on the night Ruediger was in the backyard. Furthermore, Ruediger 

stated to K.V., via two electronic messages, that he “saw” K.V. in the bathroom 

window that night. Therefore, we cannot say that the photographs “were not 

accurate re-creations of the scene.” Ruediger’s fifth assignment of error is overruled. 

E. Ineffective Assistance of Counsel

In this sixth and final assignment of error, Ruediger argues that his 

“counsel rendered ineffective assistance at trial.” 

To succeed on a claim of ineffective assistance of counsel, a 

defendant must establish that his or her attorney’s performance was deficient and 

that the defendant was prejudiced by the deficient performance. Strickland v. 

Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). However, “a 

court need not determine whether counsel’s performance was deficient before 

examining the prejudice suffered by the defendant as a result of the alleged 

deficiencies. The object of an ineffectiveness claim is not to grade counsel’s 

performance.” Id. at 697. See also State v. Bradley, 42 Ohio St. 3d 136, 538 N.E.2d 

373 (1989).

In the case at hand, Ruediger argues that his counsel was ineffective 

for three reasons, i.e., by 

(1) Not requesting a mistrial when the State repeatedly tried to 

insinuate K.V. had pictures of [Ruediger’s] penis on his phone;( 2) not 

requesting jury instructions and verdict forms providing the elements 

for a misdemeanor level dissemination of matter harmful to juveniles 
offense pursuant to R.C. 2907.31; [and] (3) not arguing to the jury that 

the State failed to present evidence that [Ruediger] provided any 

obscene matter to K.V.

Ruediger’s second and third reasons that his trial counsel was 

ineffective relate to assignments of error two, three, and four, which we overruled 

previously in this opinion. Therefore, we conclude that counsel was not deficient in 

his performance regarding these issues. Ruediger’s first reason that his counsel was 

ineffective — failing to request a mistrial when the state “insinuated” that there were 

pictures of Ruediger’s penis on K.V.’s phone — is analyzed on the merits below. 

Specifically, Ruediger argues that “two different Mayfield Heights 

police officers testified about white penis pictures[

1] found on K.V.’s phone. The 

obvious implication was to have the jury infer that these pictures were from”

Ruediger.

Ruediger admitted in his police interview that he sent “dick pics” to 

K.V. However, these pictures were not introduced into evidence, and they did not 

go back to the jury. Additionally, K.V. testified that Ruediger did not send him any 

pictures. Nonetheless, Off. Bayer and Sgt. Oberdoester testified that they saw 

pictures of what appeared to be a white penis on K.V.’s phone. 

Off. Bayer testified that he looked at K.V.’s phone when he, K.V., and 

Tonya were in his police car. Off. Bayer’s testimony on cross-examination follows:

Q: And from looking at those photos could you tell if the people in the 

photos were white, black, Hispanic, Asian?

1 Ruediger is a white male.
A: There was at least one black male and it appears one white male.

* * * 

Q: And when you testified just a moment ago about there was at least 

one black penis and one white penis, those would have been in the 

pictures of the exhibits that you were shown here today?

A: Yes.

Q: And can you look back through these and see if you could find the 

one that has a white penis on it?

A: Re-looking at it, * * * I do not believe that is a white man’s penis.

Q: Okay. So after looking at the exhibits again, it refreshes your 

memory that there wasn’t a white penis in those pictures; correct?

A: Yes.

On re-direct examination, Off. Bayer stated that “Tonya was going 

through [K.V.’s] phone and found photos of a white male’s erect penis and a white 

male ejaculating.”

Sgt. Oberdoester testified that, as part of his investigation in this 

case, he reviewed K.V.’s “cell phone dump,” which is a “forensic examination of the 

data” found on K.V.’s phone. Sgt. Oberdoester found “some images” among this 

data, and testified as follows regarding the same: “There was a penis photograph of 

an erect penis, looking to be a white male.” 

Ruediger argues on appeal that this testimony is “false” because 

these alleged pictures were never recovered from K.V.’s phone. We disagree. 

Defense counsel lodged an objection to Sgt. Oberdoester’s testimony, which the 

court sustained at sidebar, stating as follows: “[S]ince you don’t have an identifier, 
you don’t know who it came from. Then, you know, then it looks like — in my mind, 

it looks like [K.V.] then is searching the internet and grabbing photos that he wants.”

Upon review, we cannot say that Ruediger was prejudiced when his 

counsel did not request a mistrial related to this testimony. As discussed, the 

electronic messages Ruediger sent to K.V. were sufficient to support his conviction 

for disseminating matter harmful to juveniles. We previously determined that K.V. 

was a juvenile; Ruediger knew that K.V. was a juvenile, or recklessly acted in that 

regard; and the messages were obscene because they were sent to a juvenile. It does 

not appear, from the record in the instant case, that the fleeting references during 

Ruediger’s trial to a “white penis” influenced the jury. The state established the 

elements of disseminating matter harmful to juveniles with evidence other than 

these references. Therefore, these references did not prejudice Ruediger. See State 

v. Pawlak, 8th Dist. Cuyahoga No. 99555, 2014-Ohio-2175, ¶ 89 (“An appellant 

alleging ineffective assistance of counsel because his attorney failed to move for a 

mistrial must establish that the trial court probably would have or should have 

declared a mistrial. * * * A mistrial should not be ordered in a criminal case merely 

because some error or irregularity has occurred. * * * It is only appropriate when 

the substantial rights of the accused or prosecution are adversely affected, and a fair 

trial is no longer possible.”). 

Accordingly, Ruediger’s sixth and final assignment of error is 

overruled.

Judgment affirmed.
It is ordered that appellee recover from appellant costs herein taxed.

The court finds there were reasonable grounds for this appeal.

It is ordered that a special mandate issue out of this court directing the 

common pleas court to carry this judgment into execution. The defendant’s 

conviction having been affirmed, any bail pending appeal is terminated. Case 

remanded to the trial court for execution of sentence.

A certified copy of this entry shall constitute the mandate pursuant to Rule 27 

of the Rules of Appellate Procedure.

LISA B. FORBES, JUDGE

MARY EILEEN KILBANE, P.J., and

FRANK DANIEL CELEBREZZE, III, J., CONCUR