State v. Guild , 2021 Ohio 3520 ( 2021 )

[Cite as State v. Guild, 2021-Ohio-3520.]
IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
MONTGOMERY COUNTY
STATE OF OHIO :
:
Plaintiff-Appellee : Appellate Case No. 29133
:
v. : Trial Court Case No. 20CRB1404
:
JOSHUA N. GUILD : (Criminal Appeal from
: Municipal Court)
Defendant-Appellant :
:
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OPINION
Rendered on the 1st day of October, 2021.
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NOLAN C. THOMAS, Atty. Reg. No. 0078255, City of Kettering Prosecutor’s Office, 2325
Wilmington Pike, Kettering, Ohio 45420
Attorney for Plaintiff-Appellee
NICHOLAS D. GRAMAN, Atty. Reg. No. 0082359, 12 East Warren Street, Lebanon, Ohio
45036
Attorney for Defendant-Appellant
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EPLEY, J.
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{¶ 1} Joshua N. Guild appeals from the trial court’s judgment convicting him of
voyeurism, a misdemeanor of the first degree. On appeal, Guild asserts that his conviction
was based on insufficient evidence and was against the manifest weight of the evidence.
For the following reasons, the trial court's judgment will be affirmed.
I. Facts and Procedural History
{¶ 2} On December 5, 2020, Deysi Sizeland was at the Valley Thrift Store in
Kettering with her family, most notably A.S., her five-year-old daughter. When Sizeland
was standing in the aisle approximately four to six feet away from A.S., she spotted Guild
kneeling down holding his smartphone in his left hand. Sizeland testified that Guild was
“no more than a foot away from [A.S.],” placing his phone “right directly underneath [her]
dress.” Tr. 13. Sizeland then confronted Guild, demanding that she see his phone. When
Guild refused, Sizeland became physical and “maneuvered his phone or his hand” to see
the phone screen. Tr. 9. She testified that his phone was on the camera mode, recording.
Tr. 9. As Guild attempted to leave the encounter, Sizeland began requesting for someone
to call the police. Tr. 12. The police were called, and Officer Stull arrived on scene. Officer
Stull placed Guild in handcuffs while investigating. Tr. 31. After completing the
investigation, Officer Stull arrested Guild for voyeurism, in violation of R.C. 2907.08(D).
{¶ 3} The matter proceeded to a bench trial. The State’s evidence at trial consisted
of a thumb drive containing a number of videos, including the cruiser cam from the officers
involved in this case and store surveillance footage from the area where the incident
occurred. Tr. 1. The State also presented still photographs of the scene, as well as of A.S.
in her long dress. Both Sizeland and Officer Stull testified to their observations on the day
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in question. Guild did not testify or offer any evidence on his own behalf.
{¶ 4} The store surveillance video was played approximately 16 times during trial.
Tr. 14, 15, 16, 19, 21, 23, 26, 38, 39, 41, 42, 44, 45. The store surveillance video showed
A.S. standing by Sizeland and depicted Guild closely approaching A.S. while getting in a
crouched position with his phone in his left hand. The video did not show whether the
phone was directly under A.S., perhaps due to Sizeland’s blocking the view. However,
the video did show Sizeland facing the encounter from approximately four to six feet away.
Sizeland testified that she saw Guild “in a crouched position with a phone underneath
[A.S.’s] dress.” Tr. 8. She indicated that “the face of the phone, the screen, was facing
down. There is a camera pointing up towards her dress.” Tr. 8. She noted that she saw
the face of the screen, and “it was on the recording mode.” Tr. 9.
{¶ 5} Officer Stull testified about his conversation with Guild after the incident. The
officer stated that Guild told him that he (Guild) was at the Valley Thrift Store “to buy and
sell stuff * * * at a higher price.” Tr. 33. Officer Stull told the court that he asked Guild to
see his most recent video on his phone, and Guild immediately became very nervous, not
wanting to show him anything on his phone. Guild began rambling in a nervous manner,
stating “how the phone was his life, and he * * * didn’t want to accidently find out that his
video was recording on accident and get him in trouble for something he did not mean to
do.” Tr. 35. No photographs or videos from Guild’s phone were offered into evidence at
trial.
{¶ 6} Guild challenged the State’s case through cross-examination. During cross-
examination, defense counsel repeatedly played the surveillance video, asking Sizeland
to point to the exact moment that she saw the phone directly underneath A.S.’s dress. Tr.
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20. Sizeland was unable to point to this part of the video, stating: “You can’t directly see
because I’m blocking it.” Tr. 27. She indicated, “[t]he video shows one angle, and what I
saw, in person, is another thing.” Tr. 27. Guild further challenged Sizeland by emphasizing
the fact that Guild was not looking at his phone during the alleged incident. Sizeland
testified, however, that it appeared he was “pretending to look at something on the bottom
shelf.” Tr. 18.
{¶ 7} The trial court found Guild guilty and sentenced him to 180 days in jail, with
150 of those days suspended, a $1000 fine with $900 suspended, and five years of
probation. It also ordered Guild to register as a Tier I sex offender.
{¶ 8} Guild appeals from his conviction.
II. Sufficiency and Manifest Weight of the Evidence
{¶ 9} In his sole assignment of error, Guild claims that his conviction was based
on insufficient evidence and was against the manifest weight of evidence. He emphasizes
that “there was no evidence his phone was on record or picture mode and no evidence
was recovered from the phone.” Appellant’s brief at 8.
{¶ 10} When a defendant challenges the sufficiency of the evidence, “he [or she]
is arguing that the State presented inadequate evidence on at least one element of the
offense to sustain the verdict as a matter of law.” State v. Goldblum, 2d Dist. Montgomery
No. 25851 2014-Ohio-5068, ¶ 14. “An appellate court’s function when reviewing the
sufficiency of the evidence to support a criminal conviction is to examine the evidence
admitted at trial to determine whether such evidence, if believed, would convince the
average mind of the defendant’s guilt beyond a reasonable doubt. The relevant inquiry is
whether, after viewing the evidence in a light most favorable to the prosecution, any
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rational trier of fact could have found the essential elements of the crime proven beyond
a reasonable doubt.” State v. Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492 (1991).
{¶ 11} In contrast, “[a] weight of the evidence argument challenges the believability
of the evidence and asks which of the competing inferences suggested by the evidence
is more believable or persuasive.” State v. Cassell, 2d Dist. Clark No. 69-CA-64, 2011-
Ohio-23, ¶ 46. When a conviction is challenged on appeal as being against
the manifest weight of the evidence, “[t]he court, reviewing 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 [trier 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.” Goldblum at ¶ 23; see also State v. Thompkins, 78
Ohio St.3d 380, 387, 678 N.E.2d 541 (1991), quoting State v. Martin, 20 Ohio App.3d
172, 175, 485 N.E.2d 717 (1st Dist.1983).
{¶ 12} Because the trier of fact sees and hears the witnesses at trial, we must defer
to the fact-finder’s decisions whether, and to what extent, to credit the testimony of
particular witnesses. State v. Lawson, 2d Dist. Montgomery No. 16288, 1997 WL 476684,
*4 (Aug. 22, 1997). The fact that the evidence is subject to different interpretations does
not render the conviction against the manifest weight of the evidence. State v. Wilson, 2d
Dist. Montgomery No. 22581, 2009-Ohio-525, ¶ 14. A judgment of conviction should be
reversed as being against the manifest weight of the evidence only in exceptional
circumstances. Martin at 175.
{¶ 13} The trial court found Guild guilty of voyeurism. That statute states in relevant
part: “No person shall secretly or surreptitiously videotape, film, photograph, or otherwise
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record another person under or through the clothing being worn by that other person for
the purpose of viewing the body of, or the undergarments worn by, that other person.”
R.C. 2907.08(D). “Surreptitiously” is commonly defined as “unauthorized and
clandestine,” that is, done by “stealth and without legitimate authority.” State v. Latimore,
12th Dist. Butler No. CA2015-09-175, 2016-Ohio-2989, ¶ 11. Therefore, by its terms,
“[t]he elements of R.C. 2907.08(D) include an activity conducted ‘secretly or
surreptitiously’ thereby implying without consent ‘under or through the clothing’ of another,
‘for the purpose of viewing the body of, or undergarments worn by, that other
person.’ ” State v. Zimmerer, 12th Dist. Butler No. CA2019-10-176, 2020-Ohio-3921,
¶ 40, quoting State v. Hopper, 5th Dist. Licking Nos. 15-CA-92, 15-CA-93, 15-CA-94, 15-
CA-95, 15-CA-96, 2016-Ohio-5760, ¶ 21.
{¶ 14} Construing the evidence in the light most favorable to the State, there was
sufficient evidence to support Guild’s conviction. The video surveillance evidence and
Sizeland’s testimony were enough to establish each element of voyeurism. A rational trier
of fact could have concluded that Guild secretly or surreptitiously videotaped or filmed
underneath A.S.’s dress beyond a reasonable doubt.
{¶ 15} Guild argues that, because the surveillance video does not show that Guild
placed the phone directly underneath A.S.’s dress and because Sizeland’s testimony only
indicated that she saw the phone in recording mode after Guild allegedly placed the phone
underneath A.S.’s dress, the evidence was insufficient to establish all the elements of
R.C. 2907.08(D) beyond a reasonable doubt. We disagree.
{¶ 16} The fact that the State did not present any photographic or physical
evidence from Guild’s phone was not dispositive. See Zimmerer at ¶ 45-46 (finding there
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to be circumstantial evidence that defendant photographed or video-recorded the victim,
and the lack of pictures or videos on defendant’s phone only showed that the State did
not have direct evidence). “When offering proof, both circumstantial and direct evidence
have the same probative value[.]” State v. Crowe, 12th Dist. Warren No. CA2015-07-065,
2016-Ohio-1579, ¶ 19, citing State v. Crutchfield, 12th Dist. Warren No. CA2005-11-121,
2006-Ohio-6549, ¶ 20.
{¶ 17} The language of the statute does not require that the defendant archive or
save the picture or recording, only that the defendant engage in the act of “videotap[ing],
film[ing], photograph[ing], or otherwise record[ing] another person.” R.C. 2907.08(D).
Here, it can be established from circumstantial evidence, beyond a reasonable doubt,
that Guild did place the phone underneath A.S.’s dress and engaged in the act of either
photographing or recording. Sizeland’s testimony that she saw Guild’s phone in recording
mode moments after the alleged incident, along with the surveillance video of Guild
crouching down with his phone in his left hand near A.S., was enough circumstantial
evidence for the trier of fact to determine, beyond a reasonable doubt, that Guild engaged
in the act of recording or photographing A.S. underneath her dress. See State v. Strong,
10th Dist. Franklin No. 09AP-874, 2011-Ohio-1024, ¶ 42 (testimony of one witness, if
believed, is enough to support a conviction). Therefore, the conviction was not based on
insufficient evidence.
{¶ 18} Moreover, Guild’s conviction was not against the manifest weight of the
evidence. The inference that Guild was engaged in the act of recording A.S. was a
reasonable one given the evidence presented at trial; the store surveillance video, the
testimony by both Sizeland and Officer Stull, and the still photos allowed for this inference.
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{¶ 19} Guild contends that the conviction was against the manifest weight of the
evidence because, in looking at the evidence in its totality, Guild was in a lawful place
examining merchandise on the Valley Thrift Store’s bottom shelf while holding his phone.
To support this proposition, Guild points to the testimony by Sizeland which suggests he
was looking at the bottom shelf in the aisle and not his phone, along with the fact that
Sizeland, on cross-examination, could not indicate in the video the exact moment in time
that Guild placed the phone underneath A.S.’s dress.
{¶ 20} Looking at the evidence in its totality, however, it cannot be said that the
trier of fact clearly lost its way in finding Guild guilty of voyeurism. First, Guild did not need
to be looking at his phone in order to engage in the act of recording or photographing;
while this fact may make it more probable that he was looking at merchandise, Sizeland
testified that it seemed he was “pretending” to look at something on the bottom shelf while
recording A.S. This was evidence that Guild attempted to act in a secret or surreptitious
manner when recording. Thus, the inference that Guild was pretending to look at the
bottom shelf while also recording underneath A.S.’s dress was a reasonable one.
{¶ 21} Further, Sizeland could not indicate in the surveillance video the exact
moment in time that Guild placed the phone underneath A.S.’s dress because Guild’s
actions while crouching down beside A.S. were partially blocked by Sizeland, making it
impossible to see where Guild would have placed the phone underneath A.S.’s dress.
Because Sizeland was standing four to six feet away from the encounter, the trial court
could have reasonably found that Sizeland’s description of the incident was accurate.
{¶ 22} We must defer to the trier of fact as to the credibility of and weight to be
given to Sizeland’s testimony. See State v. Sewell, 2018-Ohio-2027, 112 N.E.3d 1277,
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¶ 3 (2d Dist.) (“We defer to the trier of fact on credibility issues * * *.”). Based on the
evidence presented, it cannot be said that the trier of fact clearly lost its way in determining
that the evidence supported a guilty verdict.
{¶ 23} Guild’s conviction was neither based on insufficient evidence nor against
the manifest weight of the evidence. Accordingly, his assignment of error is overruled.
III. Conclusion
{¶ 24} For the foregoing reasons, the trial court’s decision will be affirmed.
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TUCKER, P. J. and HALL, J., concur.
Copies sent to:
Nolan C. Thomas
Nicholas D. Graman
Hon. James F. Long