COLUMBUS — Attorneys for former Allen East band director Dennis Dellifield — convicted in Hardin County Common Pleas Court in February 2018 for texting two of his former students and requesting they send him photos of their erect genitalia — have formally asked the Ohio Supreme Court to hear their client’s case.
The Third District Court of Appeals in December upheld the lower court’s guilty finding against Dellifield and further upheld its sentence of 90 days in jail and five years of probation for the veteran band director. Michael Rumer and Zach Maisch, Dellifield’s attorneys, filed the paperwork Jan. 23 to request that the state Supreme Court hear the case.
The state has 30 or 45 days to respond to the request for a Supreme Court hearing of the case, Maisch said Thursday.
Dellifield was sentenced in April of last year after he was convicted in a bench trial of two counts of attempted use of a minor in nudity-oriented material or performance, both third-degree felonies, and two counts of attempted illegal use of a minor in nudity-oriented material or performance, first-degree misdemeanor charges.
Dellifield admitted during his trial to the court that he had requested the photos but denied it was for the purpose of sexual gratification.
Rumer at that time of Dellifield’s conviction said his client intended to appeal the verdict and asked Hardin County Common Pleas Court Judge Scott Barrett to delay the imposition of sentence pending that appeal. Barrett agreed to that request.
The Third District Court of Appeals judgment heard the appeal and in an entry dated Dec. 10, 2018, overruled the alleged assignments of error claimed by the defendant and remanded the case back to the trial court for execution of judgment.
Dellifield’s attorneys had argued the state failed to establish that Hardin County was the proper venue for the case and that the trial court erred by denying Dellifield’s motion to dismiss on the basis that the indictment was an unconstitutional denial of his First Amendment right.
It was further argued that the trial court erred when it admitted a specific exhibit into evidence and when it ruled his subsequent actions did not constitute an abandonment of his wrongful act.
In its ruling upholding the Hardin County court’s verdict, the Third District Appellate Court ruled that while Dellifield “proposes that he has a constitutional right to discuss any subject with another person,” the actions undertaken by the former band director were “not an attempt to discuss any matter” but rather constituted “an outright request for a picture.”
The appellate court decision also noted that Dellifield’s request for a photo of a minor’s erect penis was sufficient to constitute “child pornography” and such requests are not protected under free speech provisions of the First Amendment.
Attorneys for Dellifield had also argued against the admission as evidence of a sealed package said to contain the Dell computer seized from Dellifield’s home — the contents of which were extracted and admitted separately as evidence.
The appellate court ruling said that presenting as evidence an unopened package was “extremely unusual” but elected to admit the unopened package as evidence “over strong objection.”
Dellifield, now 70 years of age, remains free on bond.