State v. Latimore , 2016 Ohio 2989 ( 2016 )

[Cite as State v. Latimore, 2016-Ohio-2989.]
IN THE COURT OF APPEALS
TWELFTH APPELLATE DISTRICT OF OHIO
BUTLER COUNTY
STATE OF OHIO, :
Plaintiff-Appellee, : CASE NO. CA2015-09-175
: OPINION
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:
MICHAEL A. LATIMORE, :
Defendant-Appellant. :
CRIMINAL APPEAL FROM MIDDLETOWN MUNICIPAL COURT
Case No. 14 CRB 04879
Ashley Bretland, Middletown City Prosecutor, One Donham Plaza, Middletown, Ohio 45042,
for plaintiff-appellee
David Chicarelli, 614 East Second Street, Franklin, Ohio 45005, for defendant-appellant
RINGLAND, J.
{¶ 1} Defendant-appellant, Michael A. Latimore, appeals his conviction in the
Middletown Municipal Court for voyeurism. We affirm appellant's conviction.
{¶ 2} Appellant is the boyfriend of the mother of S.W., a 13-year-old girl. In August
2014, S.W. had been playing outside with her siblings, when appellant called her inside to
take a shower. Once S.W. was in the bathroom to shower and had removed her clothes, she
reached for a razor and noticed appellant's smartphone leaning against a basket, pointing
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towards her, and recording. She retrieved the phone, confirmed it was recording her,
stopped and deleted the recording, put her clothes back on, and confronted appellant.
Appellant merely yelled at her and told her never to touch his phone again.
{¶ 3} S.W. related the incident to her father, who in turn, filed a complaint with the
Middletown Police Department. Police went to appellant's home to speak with him about the
incident. At first, appellant provided the police with a false first name (i.e., his brother's), but
shortly thereafter, gave them his actual first name. Appellant was taken to the Middletown
Police Department where he submitted to a polygraph which indicated deception in his
responses to questions regarding recording S.W. in the bathroom. The police also observed
that appellant attempted to manipulate the results of the polygraph through breathing
techniques. Appellant was also interviewed by police after he received his Miranda warnings.
At first, appellant denied using his smartphone to videotape S.W. in the bathroom, telling
police at one point that he did not videotape S.W. in the bathroom because he knew she
would be naked in the bathroom. However, he eventually admitted to police he used his
smartphone to record S.W. in the bathroom, but insisted he did so merely to see if she was
stealing money and various items from the household.
{¶ 4} Appellant was charged with voyeurism in violation of Middletown Codified
Ordinance ("M.C.O.") 666.05(d), a first-degree misdemeanor, and obstructing official
business in violation of M.C.O. 606.14(A), a second-degree misdemeanor. A trial was held in
Middletown Municipal Court. At the conclusion of the state's case, the trial court granted
appellant's motion for acquittal of the obstructing-official-business charge, but overruled his
motion for acquittal of the voyeurism charge. At the close of evidence, the trial court found
appellant guilty of voyeurism in violation of M.C.O. 666.05(d). The trial court sentenced
appellant to 90 days in jail and fined him $250 in court costs, with the jail sentence
suspended on the condition that appellant not reoffend and that he not have any contact with
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S.W. The trial court also ordered appellant to register as a Tier I sex offender for 15 years.
{¶ 5} Appellant now appeals and assigns the following as error:
{¶ 6} THE TRIAL COURT ERRED IN FINDING DEFENDANT GUILTY OF
VOYEURISM.
{¶ 7} Appellant argues his conviction of voyeurism pursuant to M.C.O. 666.05(d) is
not supported by sufficient evidence. He also argues, essentially (though not explicitly), that
his conviction is against the manifest weight of the evidence.
{¶ 8} When reviewing the sufficiency of the evidence supporting a criminal conviction,
an appellate court examines the entire record to determine whether the evidence, if believed,
would convince the average mind of the defendant's guilt. State v. Kinsworthy, 12th Dist.
Warren No. CA2013-06-053, 2014-Ohio-1584, ¶ 52. The relevant inquiry 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."
State v. Jenks, 61 Ohio St. 3d 259, paragraph two of the syllabus.
{¶ 9} In determining whether a conviction is against the manifest weight of the
evidence, an appellate court examines the entire record, weighs the evidence and all
reasonable inferences, considers the credibility of the 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.
State v. Santiago, 12th Dist. Butler No. CA2015-03-046, 2016-Ohio-547, ¶ 9. However, the
appellate court must be mindful that the weight to be given the evidence and the credibility of
the witnesses are primarily matters for the trier-of-fact. State v. Thomas, 70 Ohio St. 2d 79
(1982), syllabus. An appellate court will overturn a conviction on grounds that it is against the
manifest weight of the evidence only in extraordinary circumstances where the evidence
presented at trial weighs heavily in favor of acquittal. Id. at ¶ 10.
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{¶ 10} M.C.O. 666.05(d) provides that "[n]o person shall secretly or surreptitiously
videotape, film, photograph, or otherwise record another person under or through the clothing
being worn by that person for the purpose of viewing the body of, or the undergarments worn
by, that other person." This ordinance closely tracks R.C. 2907.08(D), which provides that
"[n]o person shall secretly or surreptitiously videotape, film, photograph, or otherwise 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." (Emphasis
added.)1
{¶ 11} "Surreptitious" is commonly defined as meaning "unauthorized and clandestine;
done by stealth and without legitimate authority." Black's Law Dictionary (10th Ed.2014)
(Westlaw on-line); Black's Law Dictionary (8th Ed.2004) 1485.
{¶ 12} M.C.O. 606.02(a) states that "[a] person acts purposely when it is the person's
specific intention to cause a certain result, or, when the gist of the offense is a prohibition
against conduct of a certain nature, regardless of what the offender intends to accomplish
thereby, it is the offender's specific intention to engage in conduct of that nature."
{¶ 13} Appellant argues the state failed to present sufficient evidence to establish two
of the elements of a charge under subsection (d) of M.C.O. 666.05, namely, that (1) he
"secretly or surreptitiously" videotaped or otherwise recorded another person, and (2) he
made the recording for the "purpose" of viewing the other person's body or undergarments.
Appellant contends the state failed to establish the "secretly or surreptitiously" element, since
the smartphone in the bathroom was in plain view and S.W. immediately noticed it. Appellant
also contends the state failed to establish the "purpose" element, since the evidence shows
he recorded S.W. merely for the purpose of detecting whether she was stealing items from
1. The only difference between these two provisions is that R.C. 2907.08(D) contains the additional word "other"
that we have italicized above. We view the difference as nonsubstantive and merely stylistic, and appellant has
not argued or suggested otherwise.
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the household. Neither of appellant's arguments has merit.
{¶ 14} The evidence showed that appellant deliberately set his smartphone on
"record" mode and placed it leaning against a basket on a shelf that was behind the toilet.
Appellant knew that S.W. was outside, playing with her siblings, and he ordered S.W. to
come inside and shower. S.W. went inside, appellant got S.W. her pajamas, and S.W. went
in the bathroom where she undressed and then turned on the water. When S.W. went to
retrieve a razor that was kept in the basket on the shelf, she noticed appellant's smartphone,
which was leaning up against the basket, with the phone's camera facing towards her and
recording. S.W. deleted the recording, got dressed, and confronted appellant, who
responded by screaming at her and ordering her not to touch his phone ever again.
{¶ 15} Appellant argues the smartphone in the bathroom was "propped up in plain
view" and that S.W. noticed the phone "almost immediately[,]" and thus, "was obvious," and
"not secretive" or surreptitious. Indeed, S.W. acknowledged during her testimony that it was
"fairly common" for the smartphone to be in the bathroom. However, S.W. testified that she
did not notice the smartphone that was recording her, until she had undressed, turned on the
water, and reached for a razor that was kept in the same basket that the smartphone was
leaning against. S.W. also testified that she was aware that appellant and her mother had
been videotaping her to determine if she had been stealing from them. However, appellant
never told S.W. that he was recording her in the bathroom. Under the facts of this case, the
state presented sufficient evidence to establish the "secretly and surreptitiously" element of
M.C.O. 666.05(d), which is analogous to R.C. 2907.08(D), and the trier-of-fact's
determination that the element was proved was not contrary to the manifest weight of the
evidence.
{¶ 16} The element of "purpose" was also met. Even though appellant testified he
made the recording for the purpose of detecting whether S.W. was stealing things from the
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household, including money and items such as her sister's lingerie, and not for the purpose
of viewing S.W.'s body or undergarments, he made the videotape recording of S.W. in the
family's bathroom. As the state points out, the bathroom is "the most probable of all rooms
for a person to be in a state of undress[.]"
{¶ 17} Additionally, appellant admitted he was seeking to observe S.W. in a state of
undress to see if she possessed items which had been stolen. However, the language in
M.C.O. 666.05(d) and R.C. 2907.08(D) does not focus upon the ultimate reason why a
person may seek to view another person's body or undergarments. It is only the immediate
purpose of seeing that other person's body or undergarments that is relevant.
{¶ 18} It was primarily for the trier of fact to weigh the evidence on the question of
what appellant's actual purpose was in videotaping or otherwise recording the victim under or
through the clothing being worn by her. It cannot be said on this record that the trier of fact
lost his way or created such a manifest miscarriage of justice that appellant's conviction has
to be overturned and a new trial ordered. In light of the foregoing, appellant's assignment of
error is overruled.
{¶ 19} Judgment affirmed.
M. POWELL, P.J., and HENDRICKSON, J., concur.
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