State v. Sparks , 2019 Ohio 3145 ( 2019 )

[Cite as State v. Sparks, 2019-Ohio-3145.]
IN THE COURT OF APPEALS
TWELFTH APPELLATE DISTRICT OF OHIO
BUTLER COUNTY
STATE OF OHIO, :
Appellee, : CASE NO. CA2018-11-226
: OPINION
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:
AGYEMANG SPARKS, :
Appellant. :
CRIMINAL APPEAL FROM BUTLER COUNTY AREA III COURT
Case No. CRB1800332
Michael T. Gmoser, Butler County Prosecuting Attorney, Michael Greer, Government
Services Center, 315 High Street, 11th Floor, Hamilton, Ohio 45011, for appellee
Scott N. Blauvelt, 315 South Monument, Hamilton, Ohio 45011, for appellant
S. POWELL, P.J.
{¶ 1} Appellant, Agyemang Sparks, appeals the guilty finding and 30-day jail
sentence he received from the Butler County Area III Court after the trial court found him
guilty of one count of public indecency. For the reasons outlined below, we affirm Sparks'
conviction but reverse and remand this matter to the trial court for the limited purpose of
resentencing.
Butler CA2018-11-226
{¶ 2} Sparks was charged by private complaint with one count of public indecency
in violation of R.C. 2907.09(A)(1), a fourth-degree misdemeanor. The charges arose after
the victim, B.C., alleged Sparks exposed his penis to her while they were at work. The
matter ultimately proceeded to a one-day bench trial. During trial, both Sparks and B.C.
testified. As part of her testimony, B.C. testified that Sparks "revealed himself" to her on
three separate occasions by lifting up his sweatshirt and showing her his exposed penis.
B.C. testified Sparks did this "very discretely" from approximately one to two feet away.
Although Sparks denied ever showing his penis to B.C., the trial court nevertheless found
Sparks guilty upon finding B.C.'s testimony "very credible," "truthful," "candid," and "honest."
The trial court then sentenced Sparks to 30 days in jail, with 20 of those days suspended,
and ordered Sparks to pay a $150 fine.
{¶ 3} Sparks now appeals his conviction and 30-day jail sentence, raising two
assignments of error for review.1
{¶ 4} Assignment of Error No. 1:
{¶ 5} APPELLANT'S CONVICTION WAS CONTRARY TO THE MANIFEST
WEIGHT OF THE EVIDENCE.
{¶ 6} In his first assignment of error, Sparks argues his conviction must be reversed
because it was against the manifest weight of the evidence. We disagree.
{¶ 7} "A verdict can be against the manifest weight of the evidence even though
legally sufficient evidence supports it." State v. Myers, 154 Ohio St.3d 405, 2018-Ohio-
1903, ¶ 140. A manifest weight of the evidence challenge examines the "inclination of the
greater amount of credible evidence, offered at a trial, to support one side of the issue rather
than the other." State v. Barnett, 12th Dist. Butler No. CA2011-09-177, 2012-Ohio-2372, ¶
1. We note that the trial court granted Sparks' motion to stay his 30-day jail sentence pending appeal.
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14. To determine whether a conviction is against the manifest weight of the evidence, this
court must look at the entire record, weigh the evidence and all reasonable inferences,
consider the credibility of the witnesses, and determine whether in resolving the 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. Wilks, 154
Ohio St.3d 359, 2018-Ohio-1562, ¶ 168. This court will overturn a conviction due to the
manifest weight of the evidence only in extraordinary circumstances when the evidence
presented at trial weighs heavily in favor of acquittal. State v. Morgan, 12th Dist. Butler
Nos. CA2013-08-146 and CA2013-08-147, 2014-Ohio-2472, ¶ 34.
{¶ 8} As noted above, Sparks was convicted of public indecency in violation of R.C.
2907.09(A)(1). Pursuant to that statute, no person shall "recklessly" expose his or her
"private parts" under circumstances where 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." The Ohio Revised Code "does not specifically define the term
'private parts.'" State v. Mackie, 12th Dist. Warren No. CA2010-08-080, 2011-Ohio-2102,
¶ 20. The Ohio Jury Instructions manual nevertheless defines the term to mean "genitals."
State v. Jetter, 74 Ohio App.3d 535, 536, fn. 1 (1st Dist.1991), citing 4 Ohio Jury Instructions
(1991), Section 507.09. This would include Sparks' penis.
{¶ 9} Sparks argues his conviction must be reversed because B.C.'s testimony that
he exposed his penis to her at work lacked credibility. To support this claim, Sparks raises
a series of questions he believes prove the trial court erred by finding B.C.'s testimony
credible. This includes questions as to why their employer did not take "more serious
action" against him if its investigation revealed any truth to B.C.'s claims, why the security
cameras installed in their work area were inoperable at the times when B.C. claims he
exposed his penis to her, and why the police did not pursue charges against him. Sparks
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also claims B.C.'s testimony lacks credibility when considering B.C. has not ruled out
bringing legal action against her now former employer.2 Therefore, because he denied ever
exposing his penis to B.C., Sparks argues it was improper for the trial court to find him
guilty.
{¶ 10} Sparks' claims lack merit. While Sparks argues B.C.'s testimony lacked
credibility, the trial court, as the trier of fact, was free to believe all, part, or none of B.C.'s
testimony. State v. Davis, 12th Dist. Butler No. CA2017-04-049, 2017-Ohio-8535, ¶ 20.
This includes B.C.'s testimony that Sparks exposed his penis to her on three separate
occasions while they were at work. It is well-established that it is the trier of fact – and not
this court on appeal – that makes determinations of credibility and the weight to be given to
the evidence presented at trial. State v. Erickson, 12th Dist. Warren No. CA2014-10-131,
2015-Ohio-2086, ¶ 42, citing State v. DeHass, 10 Ohio St.2d 230, 227 (1967), paragraph
one of the syllabus. That is to say this court will not substitute its evaluation of B.C.'s
credibility for that of the trial court. State v. Kellum, 12th Dist. Clinton No. CA97-11-012,
1998 Ohio App. LEXIS 2779, *13-14 (June 22, 1998).
{¶ 11} It is equally well-established that a conviction is not against the manifest
weight of the evidence simply because the trier of fact believed the testimony offered by the
prosecution. State v. Crossty, 12th Dist. Clermont Nos. CA2017-01-003 thru CA2017-01-
005, 2017-Ohio-8267, ¶ 68. "As the trier of fact is in the best position to judge the credibility
of the witnesses, we will not disturb the trial court's finding in regard to which version of
events was credible, and which was not." State v. Bonner, 12th Dist. Butler No. CA2012-
09-195, 2013-Ohio-3670, ¶ 13. Therefore, because this is not one of those extraordinary
2. B.C. testified she no longer works for the company where she was employed when Sparks exposed his
penis to her because she "wasn't happy with the company after all of this went on." Sparks testified he also
no longer works for that company after "[he] got [himself] fired" because he could no longer complete his job
responsibilities due to pressure put on him by B.C.'s "operatives," her friends, and her supervisor.
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circumstances where the evidence presented at trial weighed heavily in favor of acquittal,
Sparks' conviction was not against the manifest weight of the evidence. See, e.g., State v.
Osborne, 5th Dist. Muskingum No. CA 92-4, 1992 Ohio App. LEXIS 6181, *6-7 (Dec. 4,
1992) (conviction for public indecency was not against the manifest weight of the evidence
where "the jury could reasonably conclude that appellant was aware that his penis was out
of his pants when he lifted his shirt, and it was not an accident"). Accordingly, finding no
error in the trial court's decision, Sparks' first assignment of error lacks merit and is
overruled.
{¶ 12} Assignment of Error No. 2:
{¶ 13} THE TRIAL COURT ERRED TO THE PREJUDICE OF APPELLANT WHERE
THE RECORD DOES NOT DEMONSTRATE THAT APPELLANT WAS GIVEN AN
OPPORTUNITY FOR ALLOCUTION AT SENTENCING.
{¶ 14} In his second assignment of error, Sparks argues the trial court erred by
denying him his right to allocution prior to issuing its sentencing decision. The state
concedes, and we agree, that the trial court did not address Sparks personally and ask if
he wished to make a statement on his behalf or present any information in mitigation of
punishment prior to sentencing as required by Crim.R. 32(A)(1). Although not considered
a constitutional right, "the right of allocution is firmly rooted in the common-law tradition."
State v. Copeland, 12th Dist. Butler No. CA2007-02-039, 2007-Ohio-6168, ¶ 6. This right
is "both absolute and not subject to waiver due to a defendant's failure to object." State v.
Haynes, 12th Dist. Butler No. CA2010-10-273, 2011-Ohio-5743, ¶ 27. Therefore, because
the trial court erred by denying Sparks his right to allocution prior to issuing its sentencing
decision, Sparks' second assignment of error is sustained and this matter is reversed and
remanded to the trial court for the limited purpose of resentencing.
{¶ 15} Judgment reversed as to sentencing only and remanded to the trial court for
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the limited purpose of resentencing. Upon remand, the trial court is instructed to personally
address Sparks and ask him if he wishes to make a statement on his own behalf or present
any information in mitigation of punishment before imposing a sentence. In all other
respects, the trial court's judgment is affirmed.
PIPER and M. POWELL, JJ., concur.
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