State v. Sipple , 2021 Ohio 1319 ( 2021 )

[Cite as State v. Sipple, 2021-Ohio-1319.]
IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO
STATE OF OHIO, : APPEAL NO. C-190462
TRIAL NO. 19CRB-15290
Plaintiff-Appellee, :
vs. :
O P I N I O N.
LAWRENCE SIPPLE :
Defendant-Appellant. :
Criminal Appeal From: Hamilton County Municipal Court
Judgment Appealed From Is: Affirmed
Date of Judgment Entry on Appeal: April 16, 2021
Andrew Garth, Interim City Solicitor, William T. Horsely, Chief Prosecuting
Attorney, and Chris Brown, Assistant Prosecuting Attorney, for Plaintiff-Appellee,
Raymond T. Faller, Hamilton County Public Defender, and Lora Peters, Assistant
Public Defender, for Defendant-Appellant.
OHIO FIRST DISTRICT COURT OF APPEALS
CROUSE, Judge.
{¶1} Defendant-appellant Lawrence Sipple has appealed his conviction for
attempted voyeurism in violation of R.C. 2907.08(D), arguing in two assignments of
error that (1) the conviction was based upon insufficient evidence and against the
manifest weight of the evidence, and (2) the trial court failed to properly impose the
sex offender classification in its sentencing entry. For the following reasons, both
assignments of error are overruled.
Factual Background
{¶2} Melvina Chestnut was standing in line at an event held by the Lord’s
Gym, a charitable organization in Cincinnati, Ohio. Chestnut testified that Sipple,
whom she described as an “acquaintance,” came up behind her and whispered in her
ear, “They said that you’re free-ballin,” which was explained by Chestnut to mean
“not wearing any underwear.” Chestnut testified that she was wearing shorts under
her dress. She felt Sipple put his phone between her legs, under her dress. She
looked down and saw his phone. She testified that the screen was “black” and she
never heard it “snap,” so she was unsure if he took a picture or not. After she caught
him, Sipple laughed and nudged her and then walked away. Chestnut called the
police, and Cincinnati Police Officer James Mathews responded to the scene.
{¶3} Mathews interviewed Sipple in his police cruiser. A portion of his body
camera video was played at trial. In the video, Sipple admitted to placing his phone
under Chestnut’s dress, but denied taking any pictures or videos. He told Mathews
that he was joking and clowning around with Chestnut, and that he knew that she
always wore shorts under her dress anyway. Sipple offered to show Mathews his
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OHIO FIRST DISTRICT COURT OF APPEALS
phone, but Mathews declined. Mathews testified that he figured that any pictures
would have been “long gone” by that point.
{¶4} Sipple was charged with voyeurism, but after a bench trial, he was
convicted of attempted voyeurism in violation of R.C. 2907.08(D). The court held a
sentencing hearing on August 2, 2019. The court informed Sipple that he would be
classified as a Tier I sex offender, and reviewed his registration duties. In its
sentencing entry, the court sentenced Sipple to 30 days in jail, a fine, and court costs,
and ordered him to stay away from Lord’s Gym and “register tier I.”
First Assignment of Error
{¶5} In his first assignment of error, Sipple contends that his conviction
was based upon insufficient evidence and was against the manifest weight of the
evidence.
{¶6} The test for determining whether the evidence was sufficient to sustain
a conviction is if “after viewing the probative evidence and inferences reasonably
drawn therefrom in the light most favorable to the prosecution, any rational trier of
fact could have found all the essential elements of the offense beyond a reasonable
doubt.” State v. MacDonald, 1st Dist. Hamilton No. C-180310, 2019-Ohio-3595, ¶
12, quoting State v. Martin, 20 Ohio App.3d 172, 175, 485 N.E.2d 717 (1st Dist.1983).
It is a question of law for the court to determine, the court is not to weigh the
evidence. MacDonald at ¶ 12. “The trier of fact is in the best position to judge the
credibility of the witnesses and the weight to be given to the evidence presented.”
State v. Carson, 1st Dist. Hamilton No. C-180336, 2019-Ohio-4550, ¶ 16.
{¶7} In reviewing a claim that a conviction is against the manifest weight of
the evidence, “we review the record, weigh the evidence and all reasonable
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OHIO FIRST DISTRICT COURT OF APPEALS
inferences, consider the credibility of the witnesses, and determine whether the trier
of fact, in resolving conflicts in the evidence, ‘clearly lost its way and created such a
manifest miscarriage of justice that the conviction must be overturned.’ ” Martin 20
Ohio App.3d at 175, 485 N.E.2d 717. Reversal of a conviction and a grant of a new
trial should only be done in “exceptional cases in which the evidence weighs heavily
against the conviction.” Id.{¶8} To convict Sipple of attempted voyeurism, the state had to prove that
he purposely or knowingly engaged in conduct that, if successful, would have
resulted in secretly or surreptitiously videotaping, filming, photographing, or
otherwise recording Chestnut under or through her clothing for the purpose of
viewing her body or undergarments. See R.C. 2923.02(A) and 2907.08(D).
{¶9} Sipple argues that he did not act surreptitiously because Chestnut was
aware of his presence, saw him pull out his phone and place it under her dress, and
because immediately afterward he told his wife about the “joke” he had just played
on Chestnut.
{¶10} Because “surreptitious” is not defined in R.C. 2907.08, we must look to
other sources for a definition. “Surreptitious” is commonly defined as “unauthorized
and clandestine; done by stealth and without legitimate authority.” State v.
Latimore, 12th Dist. Butler No. CA2015–09–175, 2016-Ohio-2989, ¶ 11, quoting
Black’s Law Dictionary (10th Ed.2014).
{¶11} Chestnut testified that she was not aware that Sipple had placed his
phone under her dress until she felt it touch her legs, at which time she looked down
and saw the phone. Chestnut did not authorize Sipple to place the phone under her
dress. Based on this testimony, there was sufficient evidence for the court to find that
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OHIO FIRST DISTRICT COURT OF APPEALS
Sipple acted with stealth and without Chestnut’s authority, and such a finding was
not against the manifest weight of the evidence.
{¶12} Next, Sipple argues that the state failed to prove that he took a
substantial step toward violating R.C. 2907.08(D).
{¶13} To prove an attempt, the state must prove that the offender purposely
did or omitted to do something which is “a substantial step in a course of conduct
planned to culminate in the commission of the crime.” MacDonald, 1st Dist.
Hamilton No. C-180310, 2019-Ohio-3595, at ¶ 13, quoting State v. Group, 98 Ohio
St.3d 248, 2002-Ohio-7247, 781 N.E.2d 980, ¶ 95. To count as a substantial step, the
conduct must be “strongly corroborative of the actor’s criminal purpose.” Id.{¶14} Sipple cites Middletown v. Reuss, 2016-Ohio-996, 48 N.E.3d 649(12th Dist.), in support of his argument that his actions did not amount to a
substantial step.
{¶15} In Reuss, the defendant was charged with violating R.C. 2907.08(D)
for holding his phone over the partition at a tanning salon and attempting to record
the victim in the next room. Id. at ¶ 2. The Twelfth District found that Reuss’s
conviction for attempted voyeurism was based on insufficient evidence because the
victim was naked when Reuss held his phone over the partition, and therefore, Reuss
could not have recorded her “under or through” her clothing, as specified by R.C.
2907.08(D). Id. at ¶ 11 (concluding that Reuss instead should have been charged
with a violation of subsection R.C. 2907.08(A) or (B)).
{¶16} The court went on to hold that the trial court conflated “intent” with
“attempt.” Id. at ¶ 14. It pointed to a statement made by the trial court at sentencing:
“I don't know if you took the picture or not but I think that was your intention to do
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OHIO FIRST DISTRICT COURT OF APPEALS
it.” Id. at ¶ 16. The Twelfth District concluded, “By its own admission, the court was
unable to discern whether Reuss actually perpetrated an attempt. Rather, the court
rested its finding of guilt upon its belief that Reuss intended to photograph [the
victim],” and “one may not be convicted on intent alone.” Id. at ¶ 16-17. The court
suggested that there was no evidence of an attempt because “[t]he phone bore no
indication regarding whether it was actively photographing or recording her,”
“[p]olice were unable to recover any photographs or video recordings from the phone
seized,” and “Ruess never admitted to making a video recording or taking a
photograph of [the victim].” Id. at ¶ 18.
{¶17} We believe the Twelfth District’s holding regarding attempt to be dicta,
and we respectfully disagree with its suggestion that the facts in that case did not
amount to an attempt. It is certainly true that “intent to commit a crime does not of
itself constitute an attempt, nor does mere preparation.” State v. Woods, 48 Ohio
St.2d 127, 131, 357 N.E.2d 1059 (1976). Instead, the “ ‘substantial step’ standard”
focuses on the defendant’s overt acts that “convincingly demonstrate a firm purpose
to commit a crime.” State v. Amos, 1st Dist. Hamilton No. C-150265, 2016-Ohio-
1319, ¶ 34, quoting Group, 98 Ohio St.3d 248, 2002-Ohio-7247, 781 N.E.2d 980, at ¶
102, quoting Woods at 132. But, the state is not required to prove that the defendant
actually captured a photograph or video of the victim in order to convict him of
attempted voyeurism.
{¶18} Sipple cannot point to any statements made by the trial court that
might cause us to believe that it conflated intent with attempt. Rather, there was
strong evidence that Sipple committed an overt act demonstrating a purpose to
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OHIO FIRST DISTRICT COURT OF APPEALS
commit voyeurism by putting his phone under Chestnut’s dress and between her
legs.
{¶19} Moreover, “[t]he conduct necessary for a criminal attempt need not be
the last proximate act prior to the consummation of the felony.” Woods, 48 Ohio
St.2d at 131, 357 N.E.2d 1059. “[The] act of climbing onto the store roof with a gun,
apparently to lie in wait for the store manager, was plainly a substantial step in the
planned robbery, and certainly was strongly corroborative of the criminal purpose.”
Id. at 132. Therefore, the state is not required to prove, as the Twelfth District in
Reuss suggested, that an offender actually took a photograph in order to be convicted
of attempted voyeurism. In fact, requiring such proof would require proof of the
offense of voyeurism itself and defeat the very purpose of the attempt statute.
{¶20} Sipple makes the additional argument that the evidence was
insufficient because there was no testimony about the type of phone and whether it
had recording or photographing capability. However, Mathews’s body camera video
reveals that Sipple offered to show Mathews his phone. He stated, “Get my phone
and I can show you every picture in that phone.” Taking this evidence in the light
most favorable to the state, we can conclude that Sipple’s phone had the ability to
record videos or take photographs.
{¶21} The dissent concludes that the mere act of placing his cell phone
underneath Chestnut’s dress does not demonstrate Sipple’s firm purpose to actually
photograph or videotape Chestnut underneath her dress because the phone was “not
in photograph or video mode.” There are several problems with this conclusion.
First, the dissent assumes that because the screen was black when Chestnut saw it,
the phone was not capable of taking a photograph or video. However, it is common
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OHIO FIRST DISTRICT COURT OF APPEALS
knowledge that a phone can easily be placed in photograph or video mode with the
touch of a button. Second, it is possible that Sipple’s phone could have taken a
photograph or video even if the screen were black.1 Third, and most importantly,
Chestnut testified that the phone was placed underneath her dress and she did not
know it was there until she felt it between her legs. Chestnut, of course, could not
testify to what mode the phone was in when it was underneath her dress and
between her legs.
{¶22} The dissent compares Sipple’s cell phone to the knife in State v. Smith,
9th Dist. Lorain No. 98CA007168, 2000 WL 110411 (Jan. 26, 2000). In Smith, the
majority of the court found there was insufficient evidence of felonious assault
because “Smith was not holding the knife in a manner that would permit him to
carry out his stated intentions; he was flailing it around.” Id. at *3. Importantly, the
court noted that “Smith never lunged at [the victim] or took any action beyond a
continuation of [his] verbal tirade * * *.” Id. But unlike the knife in Smith, Sipple did
hold his cell phone in a manner that would permit him to carry out his stated
intentions.
{¶23} By stating, “They said that you’re free-ballin,” and then putting his
phone under Chestnut’s dress, Sipple took a substantial step toward committing the
offense of voyeurism. Such an action was “strongly corroborative” of his intention to
photograph her body or undergarments. The first assignment of error is overruled.
1 There are actually smart phone applications that allow people to take photos or videos without
any camera display on the screen. See Abhishek Bhatnagar, Top 5 Apps to Activate Camera for
Hidden, Secret Pictures on Android Devices, https://gadgetstouse.com/blog/2014/05/18/top-5-
apps-to-spy (accessed April 8, 2021).
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OHIO FIRST DISTRICT COURT OF APPEALS
Second Assignment of Error
{¶24} In his second assignment of error, Sipple contends that the trial court
failed to properly impose the sex offender classification in its sentencing entry, and
that because he has completed his sentence, the classification is void and must be
vacated. Specifically, Sipple argues that even though the trial court properly stated
“register tier I” in the sentencing entry, it failed to include a summary and the
duration of Sipple’s Tier I registration duties in the sentencing entry, as is required
by R.C. 2929.23(B), rendering his sex offender classification void.
{¶25} R.C. 2929.23 delineates the requirements a trial court must follow
when imposing a sex offender classification for a misdemeanor.
If an offender is being sentenced for a sexually oriented offense * * * that is a
misdemeanor * * *, the judge shall include in the sentence a summary of the
offender’s duties imposed under sections 2950.04, 2950.041, 2950.05, and
2950.06 of the Revised Code and the duration of the duties. The judge shall
inform the offender, at the time of sentencing, of those duties and of their
duration. If required under division (A)(2) of section 2950.03 of the Revised
Code, the judge shall perform the duties specified in that section or, if
required under division (A)(6) of section 2950.03 of the Revised Code, the
judge shall perform the duties specified in that division.
(Emphasis added.) R.C. 2929.23(B).
{¶26} “This court has held repeatedly that any Tier classification under
Ohio’s version of the Adam Walsh Act is a criminal sanction that is part of the
sentence and must be set forth in the sentencing entry in order to be effective.” State
v. Emanuel, 1st Dist. Hamilton No. C-190450, 2021-Ohio-448, ¶ 5. However, this
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OHIO FIRST DISTRICT COURT OF APPEALS
court has not spoken definitively on the issue of whether the sentencing entry must
also include a summary of the offender’s registration duties and their duration in
order for an offender to be properly classified as a sex offender.
{¶27} Sipple concedes that the trial court properly informed him of his
registration duties and their duration at the sentencing hearing. He argues that the
trial court’s failure to include a summary of his registration duties and their duration
in the sentencing entry renders his sex offender classification void.2
{¶28} As an initial matter, we must determine the meaning of R.C.
2929.23(B)’s summary requirement. To determine what the General Assembly
intended by “in the sentence” we analyze how “sentence” is defined and how “in the
sentence” has been interpreted in other code sections concerning sex offender
classifications and registration requirements.
{¶29} R.C. 2929.01(E)(E) defines “sentence” as “the sanction or combination
of sanctions imposed by the sentencing court on an offender who is convicted of or
pleads guilty to an offense.” In order for a sanction to commence, it must be
imposed by the court. A sanction is imposed by the sentencing entry, not by what is
said during the sentencing hearing. State v. Halsey, 2016-Ohio-7990, 74 N.E.3d 915,
¶ 26 (12th Dist.), citing State v. Bonnell, 140 Ohio St.3d 209, 2014-Ohio-3177, 16
N.E.3d 659, ¶ 29 (“a court speaks though its journal”); see Kaine v. Marion Prison
Warden, 88 Ohio St.3d 454, 455, 727 N.E.2d 907 (2000) (“Crim.R. 32(C) expressly
2 We note that while prior precedent held that errors in the classification portion of the sentence
rendered the classification void, pursuant to the Ohio Supreme Court’s decisions in State v.
Harper, 160 Ohio St.3d 480, 2020-Ohio-2913, 159 N.E.3d 248, and State v. Henderson, 161 Ohio
St.3d 285, 2020-Ohio-4784, 162 N.E.3d 776, any sentencing errors by the trial court would render
that part of the sentence voidable, not void. See Emanuel, 1st Dist. Hamilton No. C-190450,
2021-Ohio-448, at ¶ 10.
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OHIO FIRST DISTRICT COURT OF APPEALS
provides that a judgment in a criminal case ‘is effective only when entered on the
journal by the clerk.’ ”).
{¶30} R.C. 2929.19(B)(3)(a) states that “the court shall include in the
offender’s sentence a statement that the offender is a tier III sex offender/child-
victim offender.” (Emphasis added.) “Several Ohio appellate districts have held that
R.C. 2929.19(B)(3) requires inclusion of a Tier III sex offender classification in a
sentencing entry and that its omission renders the sentence deficient.” Halsey,
2016-Ohio-7990, 74 N.E.3d 915, at ¶ 13 (citing cases from the Eighth, Seventh, and
Fourth Districts); see State v. Merritt, 1st Dist. Hamilton No. C-170649, 2018-Ohio-
4995, ¶ 7 (following Halsey and holding that “[b]ecause [the defendant’s] Tier III
classification was not included in the judgment of conviction and sentence, he is not
subject to community notification or residency requirements”).
{¶31} Even though there is no statutory language requiring Tier I and Tier II
sex offender classifications to be included “in the sentence,” this court has held that
any “Tier classification under the [Adam Walsh Act (“AWA”)] is a type of sanction
that may be imposed for an offense” and therefore, must be included “in the entry of
conviction and sentence.” State v. Hildebrand, 1st Dist. Hamilton No. C-150046,
2018-Ohio-2962, ¶ 6, 10, citing State v. Williams, 129 Ohio St.3d 344, 2011-Ohio-
3374, 952 N.E.2d 1108 (holding that the registration and verification requirements of
the AWA are punitive).
{¶32} Thus, all sex offender tier classifications under the AWA are part of the
sanction and must be included in the sentencing entry.
{¶33} Tier classifications under the AWA are automatic and are “based solely
on the offense [the offender] committed, without regard to the circumstances of the
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OHIO FIRST DISTRICT COURT OF APPEALS
crime or [the offender’s] likelihood to reoffend.” Williams, 129 Ohio St.3d 344, 2011-
Ohio-3374, 952 N.E.2d 1108, at ¶ 17, citing R.C. 2950.01(E), (F) and (G).
“[R]egistration requirements and other requirements are based solely on the fact of
conviction.” Williams at ¶ 20.
{¶34} Judges not only have zero discretion with regard to the tier
classification, they also have zero discretion with regard to an offender’s duties or the
duration he or she must register. The duties are set forth by statute. See, e.g., R.C.
2950.034 (prohibiting offender from establishing residence near school); R.C.
2950.04 (duty to register); R.C. 2950.041 (personal verification with sheriff); R.C.
2950.05 (notice of residence address change). The duration of these duties is also set
forth by statute and varies by tier. See R.C. 2950.06 and 2950.07 (Tier I = register
annually for 15 years, Tier II = register every 180 days for 25 years, Tier III = register
every 90 days for life). Thus, a tier classification makes clear the length of time an
offender must register and his or her registration duties.
{¶35} By virtue of placing the tier classification in the sentencing entry, the
sentencing court is, in effect, “includ[ing] in the sentence a summary of the
offender’s duties imposed under sections 2950.04, 2950.041, 2950.05, and 2950.06
of the Revised Code and the duration of the duties” as required by R.C. 2929.23(B).
To require a court to do more than this would put form over substance and would
make the sentencing entry longer and more confusing than necessary. It would also
potentially allow sex offenders to avoid registering due to a technicality.
{¶36} In addition to placing the tier classification in the sentencing entry, the
court is required to not only inform the offender of his or her duties and their
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OHIO FIRST DISTRICT COURT OF APPEALS
duration at the sentencing hearing (R.C. 2929.23(B)), but also provide the offender
with a form that explains those duties and their duration (R.C. 2950.03).
{¶37} Sipple acknowledges receiving, understanding, and signing the sex
offender notification form at the sentencing hearing. Sipple also agrees that the trial
court properly informed him of his registration duties and their duration at the
sentencing hearing.
{¶38} Thus, not only was Sipple properly notified of his registration duties
and their duration, he was properly sentenced because the appropriate tier
classification was included in the sentencing entry. We find the trial court did
everything it needed to do under the AWA in order to properly classify Sipple as a sex
offender. See, e.g., State v. Fowler, 10th Dist. Franklin No. 09AP-622, 2010-Ohio-
747, ¶ 5 (holding that the requirements of R.C. 2929.13(I), the felony equivalent of
R.C. 2929.23(B), were satisfied where the court informed the offender of his tier
classification and verified that the offender received a form detailing his registration
duties, reviewed it with counsel, and acknowledged that he understood the
requirements).
{¶39} Sipple’s second assignment of error is overruled.
Conclusion
{¶40} The first and second assignments of error are overruled and the trial
court’s judgment is affirmed.
Judgment affirmed.
MYERS, J., concurs.
ZAYAS, P.J., dissents.
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OHIO FIRST DISTRICT COURT OF APPEALS
ZAYAS, P.J., dissenting.
{¶41} I must respectfully dissent from the majority’s opinion. I would hold
that Sipple did not take a substantial step toward commission of the offense of
voyeurism under R.C. 2907.08(D) and would therefore reverse his conviction.
Factual and Procedural Background
{¶42} After a bench trial, Lawrence Sipple was convicted of attempted
voyeurism in violation of R.C. 2907.08(D). The conviction was based on an incident
that occurred between Sipple and Melvina Chestnut.
{¶43} Sipple and Chestnut both attended a community event for a local gym.
Chestnut wore a dress to the event with shorts underneath. While she was waiting in
line to get food for her son, Sipple came up behind her and whispered in her ear,
“They said that you’re free-balling.” He continued to whisper this in her ear while
she tried to block him out. When asked what happened next, Chestnut testified as
follows:
Chestnut: That’s when I seen him pull out his phone and he had
put it in between my legs, is I [sic] how I felt his phone
right there. And then he --
Prosecutor: How did you become aware his phone was between your
legs?
Chestnut: When I felt it in between my legs and I looked down and
he had his phone out like he was trying to take a picture.
Prosecutor: Okay. So underneath your dress?
Chestnut: Yes.
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Prosecutor: Okay. Where -- are you -- are you aware if he was able to
actually take a picture or anything like that?
Chestnut: No.
Prosecutor: Okay. So you feel his phone underneath you. What
happens next?
Chestnut: That’s when he kept on laughing and he -- like, he
nudged me; like, he nudged me and was laughing or
whatever. And then he -- then he walked over to his wife
and was telling his wife what happened, because I was
upset and I walked away.
{¶44} On cross-examination, counsel for Sipple asked Chestnut if the phone
screen was still black when Sipple put it under her dress and she replied, “As I seen
the phone go under there, it was black.” She also testified that she did not see or
hear him take a picture.
{¶45} Footage from a body worn camera of the responding officer was played
in court that showed the officer’s conversation with Sipple after his arrest. Simple
admitted telling Chestnut that he heard she was “free balling,” but denied ever
putting his phone under her dress or physically touching her. Sipple claimed that he
was “clowning around” and only “acted like I was going to do something.” He stated,
“I had [the phone] in my hand and I just lowered my arm down because I had got a
text from a friend and I had just got to reading it and I just dropped my arm and act
like that I was do something [sic].” He also claimed that he knew at the time that she
was wearing shorts under her dress because she always wore shorts under her dress.
The officer asked Sipple if it was possible that Chestnut interpreted his actions as
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OHIO FIRST DISTRICT COURT OF APPEALS
him putting the phone “down by her crotch to take a photo of her underwear” and he
admitted that it was. He told the officer, “get my phone and I can show you every
picture in that phone.” The officer testified that he never attempted to look at
Sipple’s phone.
Law and Analysis
{¶46} R.C. 2923.02 provides that, “No person, purposely or knowingly, and
when purpose or knowledge is sufficient culpability for the commission of an offense,
shall engage in conduct that, if successful, would constitute or result in the offense.”
{¶47} The 1973 Legislative Service Commission Notes to R.C. 2923.02 direct
that:
Under this section, an attempt must be purposely or knowingly
committed. If the offense attempted specifies that purpose is the
culpable mental state required for its commission, then the attempt
must be purposeful.
{¶48} R.C. 2923.02 was construed by the Ohio Supreme Court in State v.
Woods, 48 Ohio St.2d 127, 357 N.E.2d 1059 (1976), judgment vacated on other
grounds, 438 U.S. 910, 98 S.Ct. 3133, 57 L.Ed.2d 1153 (1978). Woods concerned two
defendants, Roland Reaves and Ricardo Woods, who were convicted of aggravated
murder for purposely causing the death of a police officer while fleeing immediately
after attempting to commit aggravated robbery. Id. at 129. The evidence was
essentially undisputed, id., and Woods made a complete statement about his part in
the events. Id. at 128.
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{¶49} The evidence established that Woods and Reaves met for the first time
about two weeks prior to the day in question. Id. at 128. Woods was living with
Reaves’s sister and was recently laid off from his job. Id. Woods and Reaves agreed
they needed money and used Woods’s unemployment check to purchase a .38-
caliber revolver. Id. Reaves told the seller he planned to use the gun to rob a loan
company. Id. Later that night, around midnight, Reaves and Woods parked close to
a United Dairy Farmers store and began to “case” the store. Id. They could see the
manager inside and planned to wait until the manager came out to “hold him up and
take the money.” Id. at 128-129. Reaves had the revolver they purchased, and
Woods had a .22-caliber pistol that belonged to Reaves. Id. at 129. Reaves then left
Woods across the street to be a lookout and climbed onto the roof of the store. Id.
Reaves got down from the roof and came back to join Woods and said something
looked funny. Id. They had apparently heard sirens of the fire department nearby.
Id. They then walked away from the store and down the street. Id. As they were
walking down the street, a police officer approached them, and Reaves shot the
officer several times. Id. Woods also shot at the officer, while the officer was lying
on the street, as they were fleeing the scene. Id.
{¶50} Among other things, Woods challenged the sufficiency of the evidence
to prove attempted robbery. Id. at 130. When interpreting R.C. 2923.02, the court
stated:
The committee comment for this section states, in part, that: ‘In order
to prove an attempt to commit an offense, it must be shown that
particular conduct directed toward commission of the offense took
place and that such conduct, if successful, would constitute or result in
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OHIO FIRST DISTRICT COURT OF APPEALS
the offense. * * *’ This language establishes that the essential elements
of a criminal attempt are the mens rea of purpose or knowledge, and
conduct directed toward the commission of an offense. The statute
does not, however, indicate how far this conduct must proceed toward
the actual consummation of the crime in order to be considered an
attempt to commit that crime. There is also little case law in Ohio on
this question, although this court has held that the conduct necessary
for a criminal attempt ‘need not be the last proximate act prior to the
consummation of the felony.’ State v. Farmer (1951), 156 Ohio St. 214,
216, 102 N.E.2d 11, 13, Fox v. State, (1878), 34 Ohio St. 377.
***
American courts have generally agreed that intent to commit a crime
does not of itself constitute an attempt, nor does mere preparation.
The difficulty is to formulate a standard that excludes preparations
prior to an actual attempt to commit a crime, while including, as
punishable, those acts which are so dangerously close to resulting in a
crime that intervention and arrest by the police are justified, even
before the ‘last proximate act.’ Various tests have been suggested and
followed in other jurisdictions.
***
Ohio’s statutory definitions of criminal offenses in the Revised Code
are based largely upon the American Law Institute’s Model Penal
Code, and the standard adopted in the latter code appears to us
workable, reasonable, and consistent with the language of R.C.
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2923.02(A). Under Section 5.01 of the Model Penal Code, an attempt
is when one ‘purposely does or omits to do anything which is * * * an
act or omission constituting a substantial step in a course of conduct
planned to culminate in his commission of the crime.’ To constitute a
‘substantial step,’ the conduct must be ‘strongly corroborative of the
actor’s criminal purpose.’ The application of this standard will of
course depend upon both the nature of the intended crime and the
facts of the particular case. A substantial step in the commission of a
robbery may be quite different from that in arson, rape, or some
other crime. But this standard does properly direct attention to overt
acts of the defendant which convincingly demonstrate a firm purpose
to commit a crime, while allowing police intervention, based upon
observation of such incriminating conduct, in order to prevent the
crime when the criminal intent becomes apparent.
(Emphasis added.) Woods, 48 Ohio St.2d at 131-132, 357 N.E.2d 1059.
{¶51} The court found that “Reaves’ act of climbing onto the store roof with a
gun, apparently lying in wait for the store manager, was plainly a substantial step in
the planned robbery, and certainly was strongly corroborative of the criminal
purpose.” Id. at 132. Thus, the court held that the trial court did not err in holding
that the conduct could constitute an attempted robbery. Id.
{¶52} The Ohio Supreme Court again construed R.C. 2923.02 in State v.
Brooks, 44 Ohio St.3d 185, 191, 542 N.E.2d 636 (1989). In Brooks, the court
addressed a certified question from the Ninth District, asking whether the mere
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OHIO FIRST DISTRICT COURT OF APPEALS
pointing of a deadly weapon, without more, is sufficient evidence of the offense of
felonious assault in violation of R.C. 2903.11.3 Id. at 187.
{¶53} Expanding on the court’s interpretation of R.C. 2923.02 in Woods, the
court looked to comment 6(a) of Section 5.01 of the Model Penal Code for further
guidance on the requirements of a substantial step. Id. at 191. The court stated:
Comment 6(a) to Section 5.01 of the Model Penal Code explains the
requirements of “substantial step” and corroboration of the actor’s
criminal purpose:
“(a) Requirements of ‘Substantial Step’ and Corroboration of Purpose.
Whether a particular act is a substantial step is obviously a matter of
degree. To this extent, the Code retains the element of imprecision
found in most of the other approaches to the preparation-attempt
problem. There are, however, several differences to be noted:
“First, this formulation shifts the emphasis from what remains to be
done, the chief concern of the proximity tests, to what the actor has
already done. That further major steps must be taken before the
crime can be completed does not preclude a finding that the steps
already undertaken are substantial. It is expected, in the normal case,
that this approach will broaden the scope of attempt liability.”
(Emphasis sic.) Id. at 191.
{¶54} The court ultimately held that “that act of pointing a deadly weapon at
another, without additional evidence regarding the actor’s intention, is insufficient
evidence to convict a defendant of the offense of ‘felonious assault’ as defined R.C.
3 In relevant part, R.C. 2903.11 provides, “No person shall knowingly * * * cause or attempt to
cause physical harm to another by means of a deadly weapon * * *.” (Emphasis added.)
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OHIO FIRST DISTRICT COURT OF APPEALS
2903.11(A)(2).” Id. at 192. In a concurring opinion, Chief Justice Moyer wrote to
emphasize the importance of the conditional language “that suggests that additional
evidence regarding the actor’s intention may enable a jury to find that the act of
pointing a deadly weapon at another is a felonious assault.” Id. at 196 (Moyer, C.J.,
concurring). Chief Justice Moyer listed two examples of circumstances where
evidence of a defendant’s other conduct could be used to show that the defendant
took a substantial step toward causing harm, despite doing nothing more than
pointing a deadly weapon at another: (1) “the defendant has fired a deadly weapon at
the same person on more than one occasion in the past and is now being tried for
felonious assault for having pointed a deadly weapon at the same person, with
evidence of no other conduct”; and (2) “the defendant is charged with felonious
assault for having pointed a deadly weapon at another person, with evidence of no
other conduct except that defendant fired a deadly weapon at one or more people on
the same day as the incident in question.” Id.
{¶55} Chief Justice Moyer’s concurrence demonstrates how the analysis of a
substantial step is different where there is evidence of a plan, scheme or some
common occurrence that corroborates a defendant’s criminal purpose. See id. In
these situations, a substantial step may be found closer to the preparation stage than
normally would be sufficient because there is additional evidence which corroborates
a defendant’s purpose. See id. Alternatively, where incidents happen spontaneously
and there is no evidence of a plan, scheme or some common occurrence, steps closer
to the completion of the crime are required before an overt act can be found which
convincingly demonstrates a firm purpose to commit a crime. See id.
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OHIO FIRST DISTRICT COURT OF APPEALS
{¶56} In cases where the defendant has used some sort of device or
instrumentality, the nature of the device is an important consideration in the
substantial-step analysis.
{¶57} For example, in Smith, the Ninth District recognized that the analysis
is different when looking at what constitutes a substantial step when pointing a knife
at someone and what constitutes a substantial step when pointing a gun at someone.
State v. Smith, 9th Dist. Lorain No. 98CA007168, 2000 WL 110411, *3 (Jan. 26,
2000). In Smith, George Smith (“George”) noticed two individuals in an oral
altercation. Id at *1. One of the individuals was a friend of George’s and the other
was a former roommate, Michael Smith (“Smith”), the defendant. Id. In hopes of
settling the dispute, George approached the pair and tried to intervene. Id. It was
then he noticed that Smith was holding a swiss army knife with an open blade. Id.Smith waved the knife around and told George, “I’m going to cut you. I’m going to
get you.” Id. Smith walked toward George still waving the knife and shouting
vulgarities. Id. George pointed out to Smith that the police were present, and Smith
stopped approaching. Id. Smith eventually fled on foot and dropped the knife. Id.One of the officers who observed some of the altercation testified that Smith walked
toward George waving and flailing the knife from about 15 feet to a distance of about
three feet. Id. George testified that Smith was waving the knife back and forth, but
never tried to lunge at George with the knife. Id. at *3. Smith was convicted by a
jury of felonious assault against George in violation of R.C. 2903.11(A)(2), which
prohibits an individual from attempting to cause physical harm to another by means
of a deadly weapon or dangerous ordnance. Id. at *1-2.
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OHIO FIRST DISTRICT COURT OF APPEALS
{¶58} In its analysis, the Smith court first recognized that the Ohio Supreme
Court has determined that the act of pointing a loaded gun at an individual while
threatening to use it was sufficient to establish that a defendant knowing attempted
to cause physical harm. Id., citing Brooks, 44 Ohio St.3d 185, 542 N.E.2d 636, and
State v. Green, 58 Ohio St.3d 239, 569 N.E.2d 1038 (1991). The court then
distinguished a knife from a gun, stating:
Pointing a knife at an individual is different from pointing a gun, even
though both are deadly weapons. Pointing a knife at someone is
generally only one of several steps preparatory to using it to injure
another, rather than the penultimate one. That act alone, or even
when accompanied by verbal threats, is equivocal as to whether the
assailant was trying to harm the victim, or merely intending to frighten
him, one of the primary distinctions between felonious assault, R.C.
2903.11(A)(2), and aggravated menacing, R.C. 2903.21(A).
(Citation omitted.) Smith at *3.
{¶59} The court went on to find that Smith “was not holding the knife in a
manner that would permit him to carry out his stated intentions,” and Smith “never
lunged at George or took any action beyond a continuation of the verbal tirade that
had originally been directed at George’s friend.” Accordingly, the court held, “there
was insufficient evidence of an overt act that went beyond mere preparation and was
strongly corroborative of Smith’s intent to actually harm George.” Id. at *4.
Therefore, the court found the evidence insufficient to convince a rational trier of fact
beyond a reasonable doubt that Smith attempted to cause physical harm to George.
Id. at *3.
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OHIO FIRST DISTRICT COURT OF APPEALS
{¶60} The analysis of a substantial step must be fact intensive and must look
to the nature of the crime and the facts of the particular case to determine if the steps
taken by a defendant convincingly demonstrate a firm purpose to commit the crime
for which he is charged. See, e.g., State v. Davis, 76 Ohio St.3d 107, 666 N.E.2d 1099(1996) (Finding the evidence insufficient to show attempted rape where the evidence
showed the victim was shot by the defendant in a car, the victim was trying to push
the defendant away “as if ‘she didn’t want to do something’ ” right before she was
shot, the victim was nude when the defendant dumped her body from the car, and
the forensic evidence showed there were possible finger marks on the victim’s thigh);
State v. Mincy, 1st Dist. Hamilton No. C-060041, 2007-Ohio-1316 (Finding the
evidence insufficient to show an attempt to cause harm to a bus driver where the
evidence showed that two men entered the bus, one man had a gun and pointed the
gun at the bus driver, brandished the gun while walking down the aisle of the bus,
paced back and forth in the bus while crying and yelling, exited from the bus, and
then pointed the gun at the bus); State v. Peyatt, 2019-Ohio-3585, 142 N.E.3d 11190(7th Dist.) (Finding the evidence insufficient to show attempted gross sexual
imposition where the evidence showed the defendant told the victim to “look” and
then exposed his penis to her, but did not show any further advances toward sexual
contact with the victim such as trying to make the victim touch his penis or asking
her to touch his penis); State v. Clyde, 6th Dist. Erie No. E-14-006, 2015-Ohio-1859(Finding the evidence insufficient to show attempted pandering obscenity where the
evidence showed the defendant entered the bedroom of a 14-year-old girl and offered
to pay the girl and her boyfriend if they made a “porno” for him, but did not show
that the defendant actually had the money he offered to them, that anyone
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OHIO FIRST DISTRICT COURT OF APPEALS
“disrobed,” or that any plans were arranged or further discussed); State v. Brown,
9th Dist. Lorain No. 18CA011310, 2019-Ohio-2599 (Finding the evidence insufficient
to show attempted sexual battery or attempted child endangering, despite the
behavior being “despicable and depraved,” where the evidence showed the victim’s
father talked to her about “sex lessons” when they were alone together, repeatedly
expressed his desire to teach her how to engage in both oral sex and vaginal
intercourse, and told the victim, after she was grounded for spending the night
somewhere else without telling the defendant, that she would remain grounded until
she complied with sex lessons, but did not show any significant conduct to pair with
his statements of intent, such as ordering her to remove her clothing); Compare
State v. Gann, 154 Ohio App.3d 170, 2003-Ohio-4000, 796 N.E.2d 942 (12th Dist.)
(Finding the evidence sufficient to show an attempt to engage in unlawful sexual
conduct with a minor where the evidence showed the defendant communicated with
a 14-year-old girl over the internet, arranged to meet the girl at a movie theater and
told the girl he wanted to sit in the back row with her, have oral sex with her, “finger”
her, and feel her “boobs.”).
{¶61} In this case, Sipple was found guilty of attempted voyeurism in
violation of R.C. 2907.08(D), which provides that: “No 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.”
{¶62} I agree with the majority that the state is not required to prove that a
defendant actually captured a photograph or video of the victim in order to convict a
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OHIO FIRST DISTRICT COURT OF APPEALS
defendant of attempted voyeurism in violation of R.C. 2907.08(D); however, I
disagree with the majority that the Twelfth District suggested such in Reuss.
{¶63} In Reuss, K.B. was tanning at a tanning salon, wearing only panties,
when she exited from the bed to place her cell phone on the table. Middletown v.
Reuss, 2016-Ohio-996, 48 N.E.3d 649, ¶ 2 (12th Dist.). She glanced up and saw an
Apple iPhone being held over the partition wall, with the camera lens pointed in her
direction. Id. She covered herself up and yelled, banging on the partition. Id. at ¶ 3.
The phone disappeared behind the wall. Id. K.B. leaned out of her room and banged
on the wall of the adjoining room. Id. Defendant David Ruess opened the door,
claimed he did not do anything wrong, and then quickly left the salon. Id. Ruess was
convicted by the trial court of attempted voyeurism in violation of a city ordinance
that mirrors R.C. 2907.08(D). Id. at ¶ 9.
{¶64} Ruess challenged his conviction based on the sufficiency of the
evidence, raising two issues for review. Id. at ¶ 7. First, Ruess argued that it was
physically impossible for him to violate the statute because K.B. was undressed so
there was no clothing for him to attempt to photograph or record under or through.
Id. at ¶ 9. Based on the plain language of the statute, the court agreed with him,
finding the distinguishing feature of subsection (D) to be the recording or
photographing under or through clothing being worn by the victim. Id.
{¶65} Reuss’s second argument, the relevant argument for our purposes
here, attacked the sufficiency of the evidence, arguing that the trial court’s
statements show that the trial court conflated the concepts of intent and attempt in
rendering the guilty verdict. Id. at ¶ 14. Prior to imposing the sentence, the trial
court stated, “I don’t know if you took the picture or not but I think that was your
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OHIO FIRST DISTRICT COURT OF APPEALS
intention to do it.” Id. at ¶ 16. The Twelfth District agreed this statement showed
that the court erroneously rested its guilty finding on Ruess’s intent to violate the
voyeurism statute. Id. at ¶ 18. The court went on to find the evidence insufficient to
convince the average mind beyond a reasonable doubt that Ruess attempted to
videotape or photograph K.B. because (1) K.B. could not tell whether Ruess’s phone
was operating when she glanced up from her tanning booth, (2) the phone bore no
indication regarding whether it was actively photographing or recording her, (3)
police were unable to recover any photographs or video recordings from the seized
phone, and (4) Ruess never admitted to making a video recording or taking a
photograph of K.B. Id. at ¶ 17-18.
{¶66} The majority suggests this holding shows the Twelfth District would
require the defendant to actually capture a photograph or video before convicting
him of attempted voyeurism. I disagree. Under the Ohio Supreme Court’s guidance,
to find a substantial step, we must look to overt acts already completed by the
defendant which convincingly demonstrate a firm purpose to commit the offense.
The focus is not on the acts which remain to be done for completion of the offense,
but the steps already taken. By relying on the lack of evidence, the Twelfth District
explained the lack of a step taken which would convincingly demonstrate a firm
purpose to photograph or videotape K.B. It did not conclude that actually taking a
photograph or video was necessary for the conviction. Rather, the court concluded
that the evidence presented did not show that Ruess took any steps beyond holding
the phone over the partition wall, which was insufficient to demonstrate that Ruess
had a firm purpose to commit voyeurism in violation of R.C. 2907.08(D).
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OHIO FIRST DISTRICT COURT OF APPEALS
{¶67} The same issue exists with the evidence presented in this case.
Viewing the evidence in a light most favorable to the prosecution, the evidence shows
Sipple approached Chestnut in line, made a comment to her about hearing she was
not wearing anything under her dress, and then placed an inactive device under her
dress. The device screen was black when Chestnut saw it under her dress. It was not
in photograph or record mode. Additionally, Chestnut testified that she had shorts
on under her dress and Sipple told the responding officer that he knew she was
wearing shorts under her dress. The evidence does not show a step taken by Sipple
which convincingly demonstrates a firm purpose to actually photograph or videotape
Chestnut under her dress.
{¶68} The majority would find the mere ability of the device to take a photo
or video sufficient for this finding, even though the device was not actively in that
mode at the time. They take Sipple’s statement, “Get my phone and I can show you
every picture in that phone” and, in putting it in the light most favorable to the state,
infer that this establishes that the device had the ability to record videos or take
photographs. Even assuming that the record established that Sipple’s phone had the
functional capability to record videos or take photographs, the evidence would still
be insufficient as the phone screen was black. The precedent is clear that operability
is not solely determinative; there must also be evidence of an overt act taken by the
defendant which shows a purpose to use the device in a manner sufficient for
commission of the crime alleged. See, e.g., Smith, 9th Dist. Lorain No. 98CA007168,
2000 WL 110411, and Reuss, 2016-Ohio-996, 48 N.E.3d 649.
{¶69} The majority asserts that a phone can easily be placed in photograph
or video mode with the touch of a button and that the phone could have taken a
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OHIO FIRST DISTRICT COURT OF APPEALS
photograph or video even if the screen were black. There is nothing in the record to
establish this. An appellate court’s role is to determine an appeal based on the
record before it. See App.R. 12. We may not consider facts extraneous to the record.
Paulin v. Midland Mut. Life Ins. Co., 37 Ohio St.2d 109, 112, 307 N.E.2d 908 (1974);
D’Amico v. D’Amico, 7th Dist. Mahoning No. 00-CA-46, 2001-Ohio-3438, *3.
{¶70} The record is devoid of evidence on the “common knowledge” that
phones in black screen can easily be placed in photograph or record mode with the
touch of a button. Moreover, there is no evidence of the type of phone Sipple was
using or the capabilities of the phone.4 There is also no evidence of any shortcut
buttons on his phone to place the phone in camera mode or of any secret applications
installed to take hidden photographs.
{¶71} Unlike the majority’s assertion that the mode of the device while under
Chestnut’s dress is unknown, Chestnut testified that she saw the phone as it was
going under her dress and that the phone screen was black. She testified as follows:
Counsel: -- So you said that when you came into contact with Mr.
Sipple, he approached you in the line for the food; is that
right?
Chestnut: Yes.
Counsel: Okay. And he said to you, they said that you’re free-
balling?
Chestnut: Yes.
4This can be contrasted with the evidence in Reuss where there was testimony that the phone
used was an iPhone.
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OHIO FIRST DISTRICT COURT OF APPEALS
Counsel: Okay. And that’s something that you know to mean
you’re walking around without any underwear, basically,
right?
Chestnut: Yes.
Counsel: And put it under your dress?
Chestnut: (Nodding head.)
Counsel: Okay. And you were able to see him somewhat as he put
the phone under the dress, right?
Chestnut: Yes.
Counsel: Okay. And you had told the police officer, when you
spoke with the officer, that the phone was still black
when he put it under your dress?
Chestnut: Yes, it was.
Counsel: Okay. And that’s --
Chestnut: As when I seen it going under there, it was black.
Court: I’m sorry. Can you say that again? I couldn’t hear you.
Chestnut: As I seen the phone go under there, it was black. So
yeah.
Counsel: Okay. And that’s one of the reasons why you said you
knew that he didn’t actually take a picture, right?
Chestnut: Yeah. I didn’t see him take a picture.
Counsel: Because you said that the phone was black as he put it
under your dress?
Chestnut: Yes.
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OHIO FIRST DISTRICT COURT OF APPEALS
Counsel: And you never heard it snap or take a picture or
anything like that, right?
Chestnut: No.
Counsel: Okay. And you said that you had shorts on under your
dress?
Chestnut: Yes.
Counsel: Okay. And you said that Mr. Sipple was kind of laughing
and then he went and talked to his wife about it?
Chestnut: Uh-huh.
{¶72} Without more, the evidence does not show an overt act taken by
Sipple which convincingly demonstrates a firm purpose to photograph Chestnut
under her dress. Limiting my analysis to the facts in the record and focusing on the
steps actually taken by Sipple, I would find the evidence insufficient in this case to
convince a rational trier of fact beyond a reasonable doubt that Sipple took a
substantial step toward violation of R.C. 2907.08(D). I would reverse the trial
court’s judgment on the first assignment of error, rendering the second assignment
of error moot.
Conclusion
{¶73} Accordingly, I would sustain the first assignment of error, and reverse
the judgment of the trial court.
Please note:
The court has recorded its own entry on the date of the release of this opinion.
31