State v. Breeden ( 2023 )

[Cite as State v. Breeden, 2023-Ohio-1872.]
IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO
STATE OF OHIO, : APPEAL NO. C-220325
TRIAL NO. 22CRB-2482
Plaintiff-Appellee, :
vs. :
O P I N I O N.
MANDEL BREEDEN, :
Defendant-Appellant. :
Criminal Appeal From: Hamilton County Municipal Court
Judgment Appealed From Is: Affirmed
Date of Judgment Entry on Appeal: June 7, 2023
Emily Smart Woerner, City Solicitor, William T. Horsley, Chief Prosecuting Attorney,
and Susan M. Zurface, Assistant Prosecuting Attorney, for Plaintiff-Appellee City of
Cincinnati,
Raymond T. Faller, Hamilton County Public Defender, and Sarah E. Nelson, Assistant
Public Defender, for Defendant-Appellant.
OHIO FIRST DISTRICT COURT OF APPEALS
ZAYAS, Presiding Judge.
{¶1} Mandel Breeden appeals his conviction, after a bench trial, for public
indecency. In one assignment of error, Breeden argues that his conviction is not
supported by sufficient evidence and is contrary to the manifest weight of the evidence.
For the reasons that follow, we affirm the judgment of the trial court.
Background
{¶2} Mandel Breeden was charged with public indecency for engaging in
sexual conduct in Mt. Airy Forest. After Breeden pled not guilty, the case proceeded
to a bench trial. Nathaniel Young, a police specialist in the Cincinnati Police
Department’s Vice Squad, testified that he was working undercover and investigating
complaints of sexually deviant behavior in Mt. Airy Park.
{¶3} On December 3, 2021, Young was observing the area around Oak Ridge
Lodge at 9:30 a.m. He observed a man, later identified as Douglas Witt, masturbating
and exposing himself near the lodge. Young watched as Witt walked down a set of
stairs behind the lodge next to a veranda and enter the woods. Witt went past a sign
that said, “Do Not Enter This Area. This is a [sic] Open Area for Hunting.”
{¶4} Young began walking toward the parking lot to update the surveillance
team. As he was returning to the team, Mandel Breeden walked past him. Young
noted that Breeden appeared to be “walk[ing] with a purpose” past the veranda, down
the steps, and onto the same trail that Witt had taken. Young began to follow him.
When he got to the rock wall where the veranda starts, he could see Witt standing at a
picnic table without his pants and with an erect penis. Although the picnic table was
approximately ten yards inside the wood-line, Young could see him clearly because the
trees had no leaves.
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OHIO FIRST DISTRICT COURT OF APPEALS
{¶5} Young followed Breeden down the path toward the picnic table and
observed Breeden approach Witt. Breeden removed his erect penis from his pants and
engaged in anal intercourse with Witt. At this time, Young was approximately two feet
from them. Young recorded the incident on his cell phone, and the state admitted the
recording into evidence. The recording did not reflect all of his observations as he was
walking around the park because his cell phone was in his pocket.
{¶6} Young testified that the area where the conduct occurred was used by
hunters, hikers, people walking around the lodge, people in the immediate parking lot,
and park employees. At the time, there were multiple cars in the parking lot and
several people walking in the area. Young further testified that anyone on the veranda
would be able to see the men because the veranda was elevated and overlooked the
picnic table.
{¶7} Young informed Mary Warner, a second officer on the Vice Squad, of
his observations. Warner testified that she ran the license plate number of the car that
Breeden had driven to the park. When she identified his name, she obtained his photo
through Facebook, and Young identified him. Later, Warner contacted Breeden by
phone and asked him to come to the police station. When he arrived, Warner served
him a citation.
{¶8} After Warner’s testimony, the trial court found Breeden guilty.
{¶9} Breeden now appeals, and in one assignment of error, he contends that
his conviction for public indecency was not supported by sufficient evidence and ran
contrary to the manifest weight of the evidence. In particular, Breeden argues that his
conduct was not likely to be viewed by others.
Law and Analysis
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OHIO FIRST DISTRICT COURT OF APPEALS
{¶10} In reviewing a challenge to the sufficiency of the evidence, a reviewing
court must determine whether, after viewing the evidence in the light most favorable
to the prosecution, any rational trier of fact could have found the essential elements of
the crime had been proved beyond a reasonable doubt. State v. Jenks, 61 Ohio St.3d
259, 574 N.E.2d 492 (1991), paragraph two of the syllabus.
{¶11} When considering a weight-of-the-evidence claim, we review “ ‘the
entire record, weigh the evidence and all reasonable inferences, consider the
credibility of the witnesses and determine 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.’ ” State v.
Bailey, 1st Dist. Hamilton No. C-140129, 2015-Ohio-2997, ¶ 59, quoting State v.
Thompkins, 78 Ohio St.3d 380, 678 N.E.2d 541 (1997). We afford substantial
deference to credibility determinations because the factfinder sees and hears the
witnesses. See State v. Glover, 1st Dist. Hamilton No. C-180572, 2019-Ohio-5211, ¶
30. This court will not substitute its judgment for that of the trier of fact on the issue
of witness credibility unless it is patently apparent that the trier of fact lost its way in
arriving at its verdict. Bailey at ¶ 63.
{¶12} R.C. 2907.09(A)(2) provides that no person shall recklessly engage in
sexual conduct “under circumstances in which the person’s conduct is likely to be
viewed by and affront others who are in the person’s physical proximity and who are
not members of the person’s household.” Thus, the state was required to prove that
Breeden “(1) acted recklessly; (2) exposed his private parts; (3) under circumstances
likely to be viewed by others; (4) likely to affront others; and (5) in his physical
proximity.” State v. Imboden, 4th Dist. Ross No. 21CA3752, 2022-Ohio-4580, ¶ 26.
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OHIO FIRST DISTRICT COURT OF APPEALS
The relevant inquiry is whether an offender’s conduct would likely have been viewed
by others. See State v. Fornshell, 1st Dist. Hamilton No. C-180267, 2021-Ohio-674, ¶
26. It is immaterial whether others actually viewed the conduct. See id.{¶13} Breeden argues that his conduct was not committed under
circumstances likely to be viewed by others because the area was secluded and
restricted to hunters.
{¶14} Reviewing the evidence adduced at trial, the testimony reveals that
Young had an unobstructed view from the veranda of Witt standing at a picnic table
without his pants on and with an erect penis. Later, Breeden engaged in sexual
conduct at the same picnic table. Additionally, Young testified that the conduct could
be viewed by hikers or hunters near the wooded area and anyone on the veranda.
Therefore, construing the evidence in a light most favorable to the state, any rational
trier of fact could have found that Breeden’s conduct was likely to be viewed by others.
{¶15} Breeden further argues that Young’s testimony that the picnic table was
visible from the veranda should be discounted because the video showed a significant
amount of foliage blocking the view. Young’s recording shows the rock wall at the start
of the veranda. However, the recording does not depict his visual observations due to
the location of the camera in his pocket. The factfinder was free to conclude that
Young’s testimony was credible. Based on this record, the factfinder did not clearly
lose its way and create a manifest miscarriage of justice.
{¶16} Accordingly, we overrule the assignment of error.
Conclusion
{¶17} Having overruled the sole assignment of error, we affirm the trial court’s
judgment.
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OHIO FIRST DISTRICT COURT OF APPEALS
Judgment affirmed.
WINKLER and BOCK, JJ., concur.
Please note:
The court has recorded its own entry this date.
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