Middletown v. Reuss, 48 N.E.3d 649

On Oct. 31, 2014, K.B. was tanning, partially undressed, when she saw an iPhone held above the tanning-partition with its camera aimed at her; she banged on the partition and the phone was withdrawn. Reuss exited the salon and was later arrested.
Reuss was charged under Middletown Codified Ordinance §666.05(d) (mirroring R.C. 2907.08(D)) for voyeurism; convicted at a bench trial of attempted voyeurism (second-degree misdemeanor), sentenced to 90 days jail and required to register as Tier I sex offender.
Reuss appealed, arguing (1) statutory impossibility because §2907.08(D) requires recording "under or through" clothing and K.B. was undressed, and (2) the trial court conflated intent and attempt in its finding of guilt.
The appellate court analyzed statutory language and attempt law (R.C. 2923.02(A)), reviewing sufficiency of the evidence under the Jenks standard.
The court concluded §2907.08(D) requires recording under or through clothing; because K.B. was not clothed, that element could not be met and the conviction could not stand. The court also found the conviction rested improperly on intent without proof of a substantial step constituting an attempt.
Judgment reversed and Reuss discharged; a concurring opinion urged legislative amendment to close the statutory gap criminalizing surreptitious recording of a nude person when sexual-gratification element of other subsections cannot be proven.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether evidence was sufficient to convict under R.C. 2907.08(D) (recording "under or through" clothing)	State argued purpose to view body/undergarments is the operative element and circumstantial evidence can show requisite purpose	Reuss argued physical impossibility: subsection (D) requires recording under/through clothing and victim was undressed, so essential element missing	Court held §2907.08(D) requires recording under/through clothing; conviction unsustainable because K.B. was undressed
Whether conviction rested on intent alone rather than an attempt (substantial step)	State argued defendant took substantial steps (phone held above partition aimed at victim) supporting attempt	Reuss argued trial court conflated intent with attempt; no proof phone was recording and no recovered media or admission	Court held the trial court improperly relied on intent without proof of substantial steps constituting an attempt; sufficiency lacking

State v. Thompkins, 78 Ohio St.3d 380 (Ohio 1997) (standard for reviewing sufficiency of evidence)
State v. Jenks, 61 Ohio St.3d 259 (Ohio 1991) (standard for sufficiency review: evidence viewed in light most favorable to prosecution)
State v. Huffman, 165 Ohio App.3d 518 (Ohio App. 2006) (upholding voyeurism conviction for surreptitious videotaping in a tanning salon under other subsections of R.C. 2907.08)
State v. Green, 122 Ohio App.3d 566 (Ohio App. 1997) (definition and substantial-step analysis for criminal attempt)
State v. Wilson, 192 Ohio App.3d 189 (Ohio App. 2011) (discussed purpose element and attempted voyeurism; court did not address whether victim was clothed for subsection (D) analysis)