State v. Portman

[Cite as State v. Portman, 2026-Ohio-4401.] IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT CLARK COUNTY STATE OF OHIO : : C.A. No. 2025-CA-93 Appellee : : Trial Court Case No. 25-CR-292 v. : : (Criminal Appeal from Common Pleas DARIEN LEE PORTMAN : Court) : Appellant : FINAL JUDGMENT ENTRY & : OPINION ........... Pursuant to the opinion of this court rendered on November 6, 2026, the judgment of the trial court is affirmed. Costs to be paid as stated in App.R. 24. Pursuant to Ohio App.R. 30(A), the clerk of the court of appeals shall immediately send a copy of the court’s ruling to each party and note that action on the docket. Additionally, pursuant to App.R. 27, the clerk of the court of appeals shall send a certified copy of this judgment, which constitutes a mandate, to the clerk of the trial court and note the service on the appellate docket. For the court, MARY K. HUFFMAN, JUDGE TUCKER, J., and HANSEMAN, J., concur.  OPINION CLARK C.A. No. 2025-CA-93 LUCAS W. WILDER, Attorney for Appellant JOHN M. LINTZ, Attorney for Appellee HUFFMAN, J. {¶ 1} Darien Lee Portman appeals from his convictions on 21 counts of pandering obscenity involving a minor (“pandering”). For the following reasons, the judgment of the trial court is affirmed. Facts and Procedural History {¶ 2} On April 14, 2025, Portman was indicted on 21 counts of pandering. On October 28, 2025, following a jury trial, he was convicted on all the offenses. The court ordered that the sentences on Counts 1, 2, 14, 15, 16, and 19 be served consecutively; the sentences on Counts 3-13, 17-20, and 21 were imposed concurrently with the consecutive sentences. In sum, the court imposed an indefinite sentence of a minimum of 24 years and a maximum of 26 years; Portman was also classified as a Tier II sex offender. Portman appeals. Assignments of Error and Analysis I. Sufficiency and Manifest Weight of the Evidence {¶ 3} Portman raises six assignments of error. First, he argues that his convictions were not supported by sufficient evidence and were against the manifest weight of the evidence. He claims that, pursuant to R.C. 2901.22(B), the State was required to prove that he “knowingly created, reproduced, or published obscene material that has a minor in it” for each of the 21 convictions, and that it failed to do so. Portman claims that the “normal, common meaning” of the verbs create, reproduce, and publish “is ‘create’ = make, 2 ‘reproduce’ = copy/duplicate and ‘publish’ = distribute or make available.” He asserts that there “was insufficient evidence that [he] engaged in these actions,” and that the State “did not provide the identity” of the person who did so. {¶ 4} Specifically, according to Portman, a phone containing obscene material was found at his home and attributed to him by means of an email address. He claims there was no evidence that he created, reproduced or distributed the images on the phone, and that Special Agent Jason Kearns with Homeland Security Investigations, who testified for the State, acknowledged that it was “possible” that someone else committed the offenses. Further, Portman argues that there was no proof that he “even viewed the images.” He contends that there was “no medical testimony, or evidence that the person in each image was a juvenile”; the person in each image merely “appear[ed] to be a minor.” {¶ 5} A sufficiency of the evidence argument challenges whether the State “presented adequate evidence on each element of the offense to allow the case to go to the jury or sustain the verdict as a matter of law.” State v. Wilson, 2009-Ohio-525, ¶ 10 (2d Dist.), citing State v. Thompkins, 78 Ohio St.3d 380 (1997). “The relevant inquiry is whether any rational finder of fact, after viewing the evidence in a light most favorable to the State, could have found the essential elements of the crime proven beyond a reasonable doubt.” State v. Sheeders, 2019-Ohio-3120, ¶ 27, citing State v. Dennis, 79 Ohio St.3d 421, 430 (1997). “A guilty verdict will not be disturbed on appeal unless ‘reasonable minds could not reach the conclusion reached by the trier-of-fact.’” Id. In other words, on review for sufficiency, courts are to assess not whether the State’s evidence is to be believed, but whether, if believed, the evidence against a defendant would support a conviction. Thompkins at 390. {¶ 6} A weight of the evidence argument, on the other hand, challenges the believability of the evidence and asks which of the competing inferences suggested by the 3 evidence is more believable or persuasive. Wilson at ¶ 12. “[W]hen reviewing an argument challenging the weight of the evidence, an appellate court reviews the entire record, weighs the evidence and all reasonable inferences, considers the credibility of witnesses, and determines whether, in resolving conflicts in the evidence, the finder of fact clearly lost its way and created such a manifest miscarriage of justice that the conviction must be reversed and a new trial ordered.” Sheeders at ¶ 28, citing Thompkins at 387, quoting State v. Martin, 20 Ohio App.3d 172, 175 (1st Dist. 1983). {¶ 7} As recently noted by the Ohio Supreme Court: In such cases, the court sits as a “‘“thirteenth juror”’ who may disagree with the fact-finder’s resolution of the conflicting evidence.” (Emphasis added.) State v. Martin, 2022-Ohio-4175, ¶ 26, quoting Thompkins at ¶ 25, quoting Tibbs v. Florida, 457 U.S. 31, 42 (1982). State v. Reillo, 2026-Ohio-2701, ¶ 27. “An appellate court sits as the thirteenth juror only when evidence contradicts a fact-finder’s findings, . . . or when a witness’s testimony is so inconsistent as to material facts, so impeached, or so fantastical as to make it patently unbelievable.” Id. at ¶ 3, citing Martin at ¶ 26. {¶ 8} “Although sufficiency and manifest weight are different legal concepts, manifest weight may subsume sufficiency in conducting the analysis; that is, a finding that a conviction is supported by the manifest weight of the evidence necessarily includes a finding of sufficiency.” State v. Flores-Lopez, 2017-Ohio-690, ¶ 49 (2d Dist.), citing State v. McCrary, 2011-Ohio-3161, ¶ 11 (10th Dist.); accord State v. Robinson, 2015-Ohio-1167, ¶ 17 (2d Dist.). As a result, “a determination that a conviction is supported by the weight of the evidence will also be dispositive of the issue of sufficiency.” Id., citing State v. Braxton, 2005-Ohio-2198, ¶ 15 (10th Dist.). 4  {¶ 9} As noted in Reillo: But “[i]n weighing the evidence, the court of appeals must always be mindful of the presumption in favor of the finder of fact.” Eastley, 2012-Ohio-2179, at ¶ 21. “ ‘ “If the evidence is susceptible of more than one construction, the reviewing court is bound to give it that interpretation which is consistent with the verdict and judgment, most favorable to sustaining the verdict and judgment.” ’ ” Z.C., 2023-Ohio-4703, at ¶ 14, quoting Seasons Coal Co., 10 Ohio St.3d at 80, fn. 3, quoting 5 Ohio Jur.3d, Appellate Review, § 603, at 191-192 (1978). “ ‘The underlying rationale of giving deference to the findings of the [fact-finder] rests with the knowledge that the [fact-finder] is best able to view the witnesses and observe their demeanor, gestures and voice inflections, and use these observations in weighing the credibility of the proffered testimony.’ ” Id., quoting Seasons Coal at 80. Reillo at ¶ 28. {¶ 10} Regarding the offenses at issue here, R.C. 2907.321(A)(1) states: “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 . . .” A minor is “a person under the age of eighteen.” R.C. 2907.01(M). Obscenity is defined in relevant part as follows: When considered as a whole, and judged with reference to ordinary adults or, if it is designed for sexual deviates or other specially susceptible group, judged with reference to that group, any material or performance is ‘obscene’ if any of the following apply: (1) Its dominant appeal is to prurient interest; 5  (2) Its dominant tendency is to arouse lust by displaying or depicting sexual activity, . . . or nudity in a way that tends to represent human beings as mere objects of sexual appetite; ... (5) it contains a series of displays . . . of sexual activity . . . [or] nudity . . ., the cumulative effect of which is a dominant tendency to appeal to prurient . . . interest, when the appeal to such an interest is primarily for its own sake or for commercial exploitation, rather than primarily for a genuine scientific, educational, sociological, moral, or artistic purpose. R.C. 2907.01(F). A person acts knowingly, regardless of purpose, when the person is aware that the person’s conduct will probably cause a certain result or will probably be of a certain nature. A person has knowledge of circumstances when the person is aware that such circumstances probably exist. When knowledge of the existence of a particular fact is an element of an offense, such knowledge is established if a person subjectively believes that there is a high probability of its existence and fails to make inquiry or acts with a conscious purpose to avoid learning the fact.” R.C. 2901.22(B). {¶ 11} At trial, Detective Sheila Crews of the Clark County Sheriff’s Office testified that she became familiar with Portman in 2022, learning that he owned and operated Red Moon Foot Modeling. She stated that Portman photographed “adults and juveniles in bathing suits” and took “foot pictures.” According to Crews, Portman had a website where 6 “[p]eople could buy photos . . . of the females that he took pictures of.” She testified that the images available on the website were not obscene. {¶ 12} Crews stated that, on October 4, 2022, she executed a search warrant for electronics at Portman’s home in Springfield. Crews identified a Clark County Sheriff’s Office property receipt reflecting that a rose-colored Samsung cell phone was taken from a drawer in Portman’s bedroom, and she also identified a photo of the phone in the drawer as it was found. Crews stated that the phone was given to the Department of Homeland Security, and she subsequently learned phone numbers and email addresses used by Portman on the phone. She acknowledged that she did not know what was on the phone or who had used it. {¶ 13} Special Agent Jason Kearns testified that he had specialized in cyber investigations since 2007 and had performed computer forensics since 2013; the majority of his work involved child sexual abuse materials. He testified: So devices are brought to us, and we do what’s called a forensic extraction if it’s a mobile device or forensic copy if it’s a computer or hard drive; and from there, we take the extraction and we put it into forensic software and we analyze it. On child sex abuse material cases, we have a set of hash values. A hash value is basically a mathematical equation that’s given to a picture kind of like a fingerprint where it’s unique, and those hash values are either created by our office or we also get a set from the National Center for Missing and Exploited Children, and those hash values are typically either pictures or videos of child sex abuse material that have been seen and/or victims that have been identified . . . . 7  {¶ 14} Kearns stated that such materials are often located on “the dark web, because users can “hide their identity” and “what they’re downloading and trading” there. According to Kearns, the easiest way to get on the dark web “that most people utilize is the TOR [application],” which stands for “The Onion Router,” and which “will modify a browser for you to be able to access the dark web,” and “to be able to go on there to download, search, things like that.” Kearns testified that search engines such as Bing, Google Chrome, or Yahoo! cannot access the dark web. {¶ 15} Kearns stated that, in October 2022, he was asked by the Clark County Sheriff’s Office to conduct a forensic analysis of possible child sexual abuse materials involving Portman. He received 14 devices, and “[g]oing through all the devices, there was a lot of pictures of feet,” and “there was an HP desktop that had filenames that were indicative of child exploitative material.” According to Kearns, some of the filenames “included the acronym PTHC,” which he knew from his experience to stand for “preteen hard core,” and others had the name “Pedo,” which refers to child sexual abuse material. {¶ 16} Kearns testified that he found 474 images of child sexual abuse material on the cell phone retrieved from Portman’s bedroom, specifically prepubescent children “in some sort of sexual act or gratuitous showing of the genitalia.” Kearns stated that the images had been downloaded using the TOR app, and “the download link had the word ‘onion’ in it.” According to Kearns, to “download the app, you need an account basically utilizing the Google Play Store because it’s a Samsung Android device,” and the “e-mail account was redmoonphotography123@gmail. It was downloaded on September 13, 2020.” {¶ 17} Kearns identified a report he prepared regarding the cell phone. He stated that the report identified various e-mail accounts that had been utilized on the device, all the 8 websites and cloud storage accessed by the phone, and any programs, applications, or images that were downloaded. Kearns testified that there were several email addresses “involving Red Moon Photography or Red Moon Feet,” as well as a darienportman112@gmail.com account; there was also a photo of Portman on the device. {¶ 18} Kearns testified that he had documented 21 images of child sexual abuse material on Portman’s phone, including the download links and dates and other identifying information about the images. Regarding the images, he stated that the “creation time is basically the download time, so the creation time is not the date that the image was actually created itself. It’s the date that it is saved . . . on the device.” According to Kearns, “if you were to take that picture and copy it to a thumb drive, the creation date on that thumb drive would be the date that you copied it over and saved it onto the thumb drive.” He testified that the “download source URL” reflects the location from where the individual images were downloaded. {¶ 19} Kearns reviewed Exhibits 7 through 28, each of which depicted distinct child sexual abuse material, and he stated that the majority of them came to the phone via the TOR application. He testified that those 21 images served as the basis for Portman’s indictment; the other images on the phone were similar in nature. When asked what evidence showed that Portman himself was using the phone when the images were downloaded, Kearns stated that the “phone was wiped on September 2, 2020, to a factory reset and then, after that, the e-mail accounts that were on the device” were associated with Portman. The 21 images were all downloaded after the reset, according to Kearns. {¶ 20} On cross-examination, Kearns described the process of obtaining the images, noting that “we hook the phone up to a forensic computer that contains software that pulls what’s referred to as an imager extraction from the device. And then it processes that 9 image and pulls all the information off of that device that it can read.” Kearns stated that a reset deletes everything on a phone, and he did not know who had initiated the reset. He testified that he believed the phone belonged to Portman based upon the e-mail addresses utilized on it and having been advised that it was his phone. Kearns stated that he was not aware of any security features on the phone, such as a PIN or fingerprint recognition. {¶ 21} The following exchange occurred: Q. So the ability for someone else to use that phone, it’s possible. A. It’s possible. Q. . . . So as far as knowing for sure who downloaded all of these images, you really don’t know. A. I can say they were downloaded on the device. Q. Okay. They were downloaded on the device, but as far as who it was that actually went to these websites, who was it that opened up the onion router or the onion app, you don’t know. A. Correct. All I can say is that e-mail account was utilized to download the apps. Q. It was the e-mail account? Or someone used an e-mail account to download the app. A. Correct. Q. But downloading the app does not automatically download a bunch of pictures. A. Correct. 10  Q. . . . So downloading the app give[s] you the ability or gives the user of that phone the ability to go to the onion and there possibly find images or download images from the onion. A. Correct. Q. . . . So an e-mail associated with Darien was used to download the app; but beyond that, we can’t know who was using the phone at the time that these images were downloaded. A. Yeah, I can’t say for sure. {¶ 22} Kearns testified that “URL stands for uniform resource locator . . .. If you type in www.Google.com, that is the URL. So the .onion is . . . similar to the .com, such that anything that ends in .onion comes from the onion router website.” Kearns stated that “the location of the link is where the download source URL was located. So that’s where that information was pulled from.” {¶ 23} When asked how he linked the source URL, the location of the link, and any specific image, Kearns responded that “when actions are performed, it’s all stored into databases to track that information. Devices typically do that to make it more user friendly. In case you ever want to go back to different websites or things like that, it helps to load it faster,” meaning the phone stores information to facilitate returning to certain websites. According to Kearns, the user is unable to modify information as far as when something is downloaded. {¶ 24} Kearns testified that the dark web is “like a separate part of the Internet” used for “everything from stolen credit cards, human trafficking, firearms trafficking, and child abuse material,” and that the TOR application is the easiest way to access it to view things 11 that would not be visible on a normal Google search. He denied that once the application is installed and opened on a phone, images are downloaded automatically. {¶ 25} Regarding the individual images, Kearns testified that Exhibits 7, 8, and 12-22 were downloaded from the TOR application; Exhibits 8 and 12-22 were located in a “download folder” on the phone, and Exhibits 9-11 and 23-27 were located in a “myfiles\cache folder.” Q. . . . Now, as far as them being downloaded, . . . do you have any indication that those images were ever actually opened and looked at? A. They were downloaded onto the device. . . . I believe they were viewed when they were downloaded or viewed before they were downloaded. Q. You believe that, but you don’t know for sure as far as what somebody clicked on that they were able to view it before actually downloading it. You don’t know that. A. Not without going to that specific site. Q. . . . And have you gone to any of these sites? A. I have not. Q. So you don’t know what it looked like or what the user was seeing when they clicked on the download. A. Correct. Q. . . . So it may have just been the filename that they clicked on. A. It’s possible. Q. . . . So if someone clicked on a filename and they never - - it’s possible they could have clicked on that filename, it could have been downloaded to 12  the device, the person that clicked on it and downloaded it would have never actually seen it. A. There were a few of the images that were in the cache folder. Those that were in myfiles\cache folder are ones that had to have been viewed. That’s why it was in the cache folder. {¶ 26} When asked if it was possible the images that were not located in the cache folder could have been clicked on without the user seeing them, Kearns replied that the “access date would track that the file was accessed.” In discussing Exhibit 8 as an example, Kearns stated that it was simultaneously created and last accessed on the device at the same time. His testimony continued: Q. So does that indicate that there was any human interaction with this file at all? A. It was basically downloaded and looked at at the same time. Q. I mean do you really even know that it was looked at? A. The file was according to the access date and time. Q. But that was the exact same time that it was downloaded. A. Correct. So if it pops up right when you download it, that would be accessed. Q. But do you know that it popped up when it downloaded? A. The date and time would be indicative of that. Q. That it popped up? A. Possibly. Q. Possibly. But it could have possibly gone into some file on the phone and never actually got looked at. A. I guess that’s possible. 13  Q. So unless there was some sort of thumbnail or preview or something to where someone could see it before they downloaded it, if it was just a filename that said download and they clicked on it, they would have never seen it, they would have opened it, they would never have viewed it. And that’s possible. A. It’s possible. {¶ 27} Kearns testified that, based on his experience and training, “the cache app is a temporary file location folder, so it’s one of those locations where it helps you bring the websites and things like that, pictures back faster to enhance your viewing experience.” He stated that the user does not place websites or images in the cache folder but that the device automatically does so. {¶ 28} When Kearns was asked about the age of the victim in Exhibit 27, the following exchange occurred: Q. . . . How do you know that that’s a juvenile in that picture? A. Just based on all my training and experience. I don’t know off the top of my head either. It could have been flagged as an identified victim. Q, . . .So you’re not sure if that actually is a child? A. It appears to be a minor to me. Q. What about it? A. Just based on the size of the male and the size of the female. Q. Because it’s a small female? But as far as knowing that she’s under 18 or 15 or 13 or 8 or 10, is there anything about that picture other than just being relatively small? A. Like I said, it might have been flagged as a known victim. I don’t know. Q. Might have been. All right. 14  {¶ 29} On redirect examination, Kearns testified that, in his experience, people don’t “just get child porn downloaded on their devices without knowledge of it.” “[Y]ou have to be actually looking for it. Typically when you do, like a Google search and you search for either child pornography or what not, . . . it will not pop up. . . . Google and other companies are required to look for it and report it to the National Center for Missing and Exploited Children.” He stated that the majority of the images seem to have been downloaded from the dark web. {¶ 30} After Kearns testified, the State recalled Crews over objection. She acknowledged having heard Kearns’s testimony. Crews testified that she had provided an e-mail address to Kearns: “redmoon123@gmail.com.” She stated that she had become aware of the address through her investigation of “a Cash App subpoena” that “showed that Darien and Cash App were having conversation using that email address.” {¶ 31} Having reviewed the entire record and weighed the evidence and all reasonable inferences, we cannot conclude that Portman’s convictions were against the manifest weight of the evidence and or unsupported by sufficient evidence. The jury reasonably concluded that Portman had created obscene material with minors as participants by downloading 21 images to his cell phone, with knowledge of the character of the images involved. {¶ 32} Notably, Portman does not assert that the phone found in his bedroom did not belong to him or that the images on it were not obscene. Kearns made clear that “creation time” was the date that the images were downloaded, and that a user must deliberately search for such material as it is not available on conventional search engines. Thirteen of the images on Portman’s phone had been transferred to a “download folder” on the phone, and 13 were located in a cache folder. Fourteen of them specifically came from the TOR application, which Kearns testified was the most straightforward route to the dark web. 15 The images had been accessed by an email account associated with Portman, and Kearns testified that once the TOR application is installed, images cannot be downloaded without deliberate action by the user. Although defense counsel repeatedly sought to establish that the images could have been downloaded without being viewed, each download, or creation, completed the offense. {¶ 33} Based upon Kearns’s testimony, the jury could have reasonably concluded that Portman had deliberately accessed the dark web for downloading purposes. Such a conclusion was also supported by the fact that Portman’s desktop reflected filenames indicative of child sexual abuse material, including “PTHC” and “Pedo.” The vast number of images on Portman’s devices belies any suggestion that the downloads were not intentional. Portman’s email account was downloaded shortly after the phone received a factory reset. {¶ 34} Regarding any suggestion that the victims in the images were not minors, R.C. 2907.322(B)(3) states: “In a prosecution under this section, the trier of fact may infer that a person in the material or performance involved is a minor . . . if the material or performance, through its title, text, visual representation, or otherwise, represents or depicts the person as a minor . . .” In other words, expert testimony was not required to establish the age of the victims. See State v. Tooley, 2007-Ohio-3698 (holding that the state sufficiently established that persons depicted were real minors by submitting actual images to jury.) {¶ 35} We have viewed the images. The photos speak for themselves, and the victims depicted were clearly under the age of 18 by a significant margin. See State v. Gann, 2003-Ohio-4000, ¶ 41, quoting State v. Young, 37 Ohio St.3d 249, 258 (1988). 16 Accordingly, the jury reasonably concluded that they were minors beyond a reasonable doubt. {¶ 36} Portman’s convictions for pandering were supported by sufficient evidence and were not against the manifest weight of the evidence. His first assignment of error is overruled. II. Limiting Instruction {¶ 37} In his second assignment of error, Portman argues that the trial court erred in failing to provide a limiting instruction on “prejudicial evidence.” {¶ 38} He points to the following statements by the prosecutor in opening statement: “And you will hear bits and pieces as to why he came onto the radar of the sheriff’s department. Some of it’s not relevant, but you will hear that the defendant ran a photography business where he took pictures mainly of girls and young women, mostly scantily dressed and sometimes featuring their feet.” Portman also argues that “pictures and information were provided about Portman’s foot picture business.” According to Portman, this evidence of prior acts and conduct was impermissible under Evid.R. 404(B) and “undoubtedly influenced the jury.” He claims that any suggestion that he did not possess, view, or download the child material “was affected by this irrelevant evidence about his foot pictures and ‘scantily’ dressed minors.” {¶ 39} Portman acknowledges that he did not object during the State’s opening statement. He notes that he did object during Crews’s and Kearns’s testimony, but that no limiting instruction was given until Kearns’s testimony and the final instructions. According to Portman, by that point, the damage had been done. He argues that the alleged Evid.R. 404(B) “prior bad acts evidence undoubtedly influenced the jury,” and any defense “was affected by this irrelevant evidence about foot pictures or ‘scantily’ dressed minors.” 17  {¶ 40} “‘A hallmark of the American criminal justice system is the principle that proof that the accused committed a crime other than the one for which he is on trial is not admissible when its sole purpose is to show the accused’s propensity or inclination to commit crime.’” State v. Hartman, 2020-Ohio-4440, ¶ 20, quoting State v. Curry, 43 Ohio St.2d 66, 68 (1975). This principle “is premised on our understanding of human nature: the typical juror is prone to ‘much more readily believe that a person is guilty of the crime charged if it is proved to his satisfaction that the defendant has committed a similar crime.’” Id., quoting State v. Hector, 19 Ohio St.2d 167, 174-175 (1969). {¶ 41} “The general principle that guides admission of evidence is that ‘[a]ll relevant evidence is admissible . . . .’” State v. Morris, 2012-Ohio-2407, ¶ 11, citing Evid.R. 402. To be relevant, evidence must have “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.” Evid.R. 401. {¶ 42} Evid.R. 404(B), however, provides exceptions to the general principle that all relevant evidence is admissible. It states: (B) Other Crimes, Wrongs or Acts. (1) Prohibited Uses. Evidence of any other crime, wrong or act is not admissible to prove a person’s character in order to show that on a particular occasion the person acted in accordance with the character. (2) Permitted Uses . . . . This evidence may be admissible for another purpose, such as proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident. . . . {¶ 43} To be admissible under Evid.R. 404(B)(2), the “key is that the evidence must prove something other than the defendant’s disposition to commit certain acts.” Hartman 18 at ¶ 22. In other words, “while evidence showing the defendant’s character or propensity to commit crimes or acts is forbidden, evidence of other acts is admissible when the evidence is probative of a separate, nonpropensity-based issue.” Id. {¶ 44} “The Supreme Court of Ohio has put forth a three-step analysis for a trial court to use in determining the admissibility of other acts evidence.” State v. Walter, 2013-Ohio- 2700, ¶ 62 (2d Dist.), citing State v. Williams, 2012-Ohio-5695, ¶ 20. “The first step is to consider whether the other acts evidence is relevant to making any fact that is of consequence to the determination of the action more or less probable than it would be without the evidence.” Id., citing Evid.R. 401. The second step requires the trial court to “consider whether evidence of the crimes, wrongs, or acts is presented to prove the character of the accused in order to show activity in conformity therewith or whether the other acts evidence is presented for a legitimate purpose, such as those stated in Evid.R. 404(B).” Id. The third step requires the trial court “to consider whether the probative value of the other acts evidence is substantially outweighed by the danger of unfair prejudice.” Id., citing Evid.R. 403. “The defendant’s other act ‘must have such a temporal, modal and situational relationship with the acts constituting the crime charged that evidence of the other acts discloses purposeful action in the commission of the offense in question.’” Id. at ¶ 63, quoting State v. Snowden, 49 Ohio App.2d 7, 10 (1st Dist.1976), citing State v. Burson, 38 Ohio St.2d 157, 159 (1974). {¶ 45} “The admissibility of other-acts evidence pursuant to Evid.R. 404(B) is a question of law. The [trial] court is precluded from admitting improper character evidence under Evid.R. 404(B), but it has discretion to allow other-acts evidence that is admissible for a permissible purpose.” State v. Graham, 2020-Ohio-6700, citing Hartman at ¶ 22, citing Williams at ¶ 17. Appeals of such decisions are considered by an appellate court under an 19 abuse-of-discretion standard of review.” State v. Morris, 2012-Ohio-2407, ¶ 14. “A trial court’s improper admission of other-acts evidence ‘may be deemed harmless error . . . when, after the tainted evidence is removed, the remaining evidence is overwhelming.’” State v. Beall, 2021-Ohio-5052, fn. 3, quoting State v. Morris, 2014-Ohio-5052, ¶ 32. Opening Statement {¶ 46} As to the prosecutor’s statements regarding Red Moon Foot Modeling in opening statement, Portman’s failure to request a limiting instruction waives all but plain error. State v. Carter, 2018-Ohio-3671, ¶ 53 (8th Dist.), citing State v. Perez, 2009-Ohio- 6179, ¶ 136. “Where the defense fails to request a limiting instruction on other acts evidence, the trial court’s failure to give such an instruction is not plain error where nothing suggests the jury used other acts evidence to convict the defendant because he was a bad person.” Id. Further, Crews testified that the images on the website were not pornographic; in other words, they were not indicative of any prior bad acts. Portman points to nothing that suggests the jury relied on the prosecutor’s remarks in opening statement to convict him. Crews’s Testimony {¶ 47} During Crews’s initial direct testimony, after the prosecutor indicated that the photos on Portman’s website were not pornographic, and as she prepared to introduce images from the website, defense counsel objected. After a discussion at sidebar in which the prosecutor indicated that the pictures were screenshots of Portman’s photography business of girls, some under 18, in bathing suits, the court ordered the State not to “show any additional pictures.” When the prosecutor subsequently indicated that she intended to show photos of the search warrant and its execution, defense counsel again objected, and the court excused the jury to resolve the objection. 20  {¶ 48} After a lengthy discussion, the court indicated, “if the State plans on getting into other images, . . . if they go towards such things as absence of mistake or knowledge, then they would be admissible; however, I’m not going to allow the images to be shown, just the testimony to them; and I will give a limiting instruction to the jury.” After further discussion, the court reiterated that if the State sought to introduce the evidence pursuant to Evid.R. 404(B) to prove “that this wasn’t a mistake, that he had knowledge of what the type of character was that he was putting on his device, then yes. I don’t want to cloud the jury with a thousand other images,” but “someone can testify that . . . there were other images.” The court further indicated that in the event of an objection by defense counsel, it would instruct the jurors that “they cannot consider that for any other purpose only to go towards the absence of mistake and the knowledge, not that he acted in conformity therewith,” and that “not only will I instruct [the jury] during the testimony but also again instruct them during the jury charge.” {¶ 49} Crews then testified regarding the execution of the search warrant. Defense counsel objected to photos of “everything that was found in the house.” After a discussion at sidebar, Crews introduced the property receipt listing Portman’s phone as Item 22 and photos of the outside of Portman’s home, the phone in the drawer where it was found, and Portman’s room. {¶ 50} None of the website photos were introduced, and the other exhibits were not Evid.R. 404(B) material. Accordingly, Portman’s assertion that the trial court erred in not giving a limiting instruction (that was not requested) lacks merit. Kearns’s Testimony {¶ 51} Kearns testified that there had been an HP desktop computer at Portman’s house “that had filenames indicative of child exploitative material,” and defense counsel 21 objected. The court advised the jury that the case was based upon the 21 images, but “the State is asking that additional information come in to show that there wasn’t a mistake”, and such evidence “doesn’t come in to show that he acted in conformity” as to the 21 images. The court advised the jury, “I am giving you this limiting instruction that you cannot and shall not consider it for any other purpose other tha