STATE OF OHIO, Plаintiff-Appellee, v. ERIC JERMAINE SHANNON, Defendant-Appellant.
CASE NO. 2020-T-0020
IN THE COURT OF APPEALS ELEVENTH APPELLATE DISTRICT TRUMBULL COUNTY, OHIO
March 8, 2021
2021-Ohio-789
Criminal Appeal from the Trumbull County Court of Common Pleas, Case No. 2019 CR 00966. Judgment: Affirmed.
Stephen A. Turner, Turner, May & Shepherd, 185 High Street, N.E., Warren, OH 44481 (For Defendant-Appellant).
CYNTHIA WESTCOTT RICE, J.
{1} Appellant, Eric Jermaine Shannon, appeals from the judgment of the Trumbull County Court of Common Pleas, convicting him, after trial by jury, on two counts of public indecency, felonies of the fifth degree. We affirm appellant‘s convictions.
{2} On October 26, 2019, an African-American male entered the North Road Coin Laundry, in Trumbull County, Ohio, with no laundry. Barbara Hudson was
{3} Detective Nicholas Carney of the Warren City Police was assigned to investigаte the incident. The detective obtained surveillance footage depicting an African-American male masturbating with his left hand while sitting in a chair as well as walking around the laundromat. The detective was ultimately contacted by Lieutenant Nicholas Timko from the Trumbull County Sheriff‘s office. The lieutenant stated he was investigating a similar incident, рotentially involving the same suspect. Lt. Timko was informed by a county employee, Kim Taylor, of an incident which occurred while on a walk during her lunch break. On October 24, 2019, around 1:00 p.m., Ms. Taylor was walking outside the Administrative Building in Warren, Ohio. At the corner of Harmon and Monroe streets, she described a set of dumpsters in the parking lot behind the Administrative building. As she passed, she was startled by an African-American male
{4} Based upon the information from both the Warren City Police and Trumbull County Sheriff‘s Office, appellant was arrested. Appellant was ultimately indicted on two counts of public indecency, each in violatiоn of
{5} “The imposed prison sentence was disproportionate and excessive for the purposes set forth in
{6} Although appellant challenges the trial court‘s imposition of an aggregate term of 24 months, he does not claim the trial court failed to cоmport with
{7} Initially, appellant cites
{8} Previously, when reviewing sentencing challenges relating to the factors set forth under
{9} [I]t is fully consistent for appellate courts to review those sentences that are imposed solely after consideration of the factors in
R.C. 2929.11 and2929.12 under a standard that is equally deferential to the sentencing court. That is, an appellate court may vacate or modify any sentencе that is not clearly and convincingly contrary to law only if the appellate court finds by clear and convincing evidence that the record does not support the sentence. Marcum, supra, at 23.
{10} Recently, however, in State v. Jones, Ohio Slip Opinion No. 2020-Ohio-6729, the Ohio Supreme Court concluded that the foregoing language in Marcum was dicta. Id. at 27. In Jones, the court held that ”
{11} Accordingly, under Jones, when reviewing felony sentences that are imposed solely after considering the factors in
{12} Appellant‘s argument essentially asserts that the record does not support the harshness of his sentenсe. As just pointed out, however, we cannot assess whether, under
{13} At the sentencing hearing, the trial court stated it had reviewed appеllant‘s record, both adult and juvenile. It noted his first offense was aggravated robbery, an offense of violence, with a firearm for which he served four years in prison. Appellant then violated his parole. The court then pointed out appellant had a public indecency conviction in 2016; four public indecency convictiоns in 2017; an assault conviction in 2017; a criminal trespass in 2017; a public indecency in 2018; a criminal trespass in 2018; and a petty theft in 2019. The court went on to state:
{14} [W]hat troubles me is your inability to control yourself. We know that you‘re capable of violence because you were sent to prison on an offense of violence, the aggravаted robbery. We know about the prior convictions that were even part of your indictment. I also saw the witnesses on the witness stand, the two victims, and the one in particular was shaking in her shoes.
{15} You are incapable of staying out of trouble. Absolutely incapable. The only time you‘re not doing this in public is when you‘re not in public. And the only time you‘re not in public is when you‘re incarcerated.
{16} The court went on to sentence appellant to a term of 12 months on each count and, after addressing the
{17} This court has often noted that even though a trial court is required to consider the
{18} Appellant‘s first assignment of error lacks merit.
{19} Appellant‘s second and third assignments of error shall be addressed together. They provide:
{20} “[2.] the state failed to produce evidence that was legally sufficient to sustain the verdict as to count one that appellant committed public indecency.
{21} “[3.] The state failed to produce evidence that was legally sufficient tо sustain the verdict as to count two that appellant committed public indecency.
{22} A “sufficiency” argument raises a question of law as to whether the prosecution offered some evidence concerning each element of the charged offense. State v. Windle, 11th Dist. Lake No. 2010-L-0033, 2011-Ohio-4171, 25. “[T]he proper inquiry is, after viewing the evidence most favorably tо the prosecution, whether the jury could have found the essential elements of the crime proven beyond a reasonable doubt.” State v. Troisi, 179 Ohio App.3d 326, 2008-Ohio-6062, 19 (11th Dist.). “Sufficiency of the evidence tests the burden of production.” State v. Rice, 11th Dist. Lake Nos. 2018-L-065 and 2018-L-066, 2019-Ohio-1415, 65.
{23} In contrast, a court reviewing the manifest weight observes the entire record, weighs the evidence and all reasоnable inferences, considers the credibility of the witnesses and determines whether, in resolving conflicts in the evidence, the jury 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. Schlee, 11th Dist. Lake No. 93-L-082, 1994 WL 738452, *4-5 (Dec. 23, 1994). A challenge to the weight of the evidence
{24} Appellant was convicted of two counts of public indecency, in violation of
{25} (A) No person shall recklessly do any of the following, 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:
{26} (1) Expose the person‘s private parts;
{27} * * *
{28} (C)(2) * * * If the offender previously has been convicted of or pleaded guilty to three or more violations of this section, a violation of division (A)(1) of this section is a misdemeanor of the first degree or, if any person who was likely to view and be affronted by the offender‘s conduct was a minor, a felony of the fifth degree.
{29} Under assigned errors two and three, appellant asserts the evidence presented at trial was insufficient to support the reasonable inference that a minor would have likely seen and been affronted by his conduct. Appellant places great emphasis on the term “likely,” asserting the word denotes a “high probability of оccurring.” Although appellant limits his challenge, we shall address each element of the crimes in interest of a comprehensive analysis.
{30} Here, appellant admitted he was the individual between the dumpsters (count one); he testified, however, he was simply urinating and, given his positioning, was not likely to be viewed by any passers-by, let alonе children. Ms. Taylor testified, however, that as she walked by appellant‘s location, he was exposing himself and
{31} Regarding count two, the laundromat incident, Ms. Hudson testifiеd that she spoke with appellant, smoked a cigarette with him, observed him for approximately 45 minutes, and permitted him to use the restroom. She then testified she witnessed him masturbating in the facility. She selected him out of a photo line-up and stated she was 100 percent certain he was the individual she observed masturbating. She additionally echoed her certainty when identifying appellant in court. Finally, she testified children are in the laundromat on a daily basis; due to the relative prevalence of children, the facility has a location where children can play while parents do laundry.
{32} With the foregoing in mind, the state adduced sufficient evidence that appellant, at the very least, recklessly exposed his private parts such that it was likely to be viewed by others in his physical proximity. With regard to the likelihood of a minor viewing the same, we conclude the state also satisfied its burden of production.
{33} In State v. Benner, 40 Ohio St.3d 301, 313 (1988) (abrogated on other grounds by Horton v. California, 496 U.S. 128 (1990)) the Supreme Court equated the term “likely” with the term “probable” and stated:
{34} According to the Oxford English Diсtionary, ‘probable’ means ‘[h]aving an appearance of truth; that may in view of present evidence be reasonably expected to happen, or to prove true; likely.’ VIII Oxford English Dictionary (1933) 1401, definition 3. ‘Likely’ is defined as follows: ‘Having an appearance of truth or fact;
that looks as if it would * * * prove to be what is allеged or suggested; probable.’ VI Oxford English Dictionary (1933) 288, definition 2.
{35} According to Black‘s Law Dictionary, “likelihood” means “[p]robability” and “imports something less than reasonably certain.” Black‘s Law Dictionary (5 Ed.1979) 834, citing Clark v. Welch (C.A.1, 1944), 140 F.2d 271, 273. “Likely” means “[p]robable” or “[i]n all probability.” Id., citing Horning v. Gerlach (1934), 139 Cal.App. 470, 34 P.2d 504, 505. See, also, Webster‘s Third New International Dictionary (1971) 1310 and 1806.
{36} Moreover, “a person is likely to be present when a consideration of аll the circumstances would seem to justify a logical expectation that a person could be present.” State v. Green, 18 Ohio App.3d 69, 72 (10th Dist.1984).
{37} In light of the foregoing, we hold the state produced sufficient evidence of a probability or a logical expectation that a minor could be present when appellant exposed his private parts betwixt dumpsters in the city of Warren near a school and in a laundromat frequented by adults with children. Thus, there was sufficient evidence introduced at trial to meet the state‘s burden on this element of the crime of public indecency, elevating the same to a felony of the fifth degree.
{38} Appellant‘s second and third assignments of error laсk merit.
{39} Appellant‘s fourth assignment of error contends:
{40} “[4.] The jury‘s verdict of guilt as to count one of public indecency was against the manifest weight of the evidence.”
{41} Under his fourth assignment of error, appellant argues his conviction on count one (the dumpster incident) was against the manifest weight of the evidence because the jury lost its way in concluding he was not, as he testified, simply urinаting. He points out that a comment to the statute from the Legislative Service Commission
{42} While appellant insists he was merely “answering an urgent call of nature,” Ms. Taylor testified she witnessed appellant еxposing himself to her and fondling his penis. When asked whether appellant was relieving himself, she firmly responded he was not. Ms. Taylor pointed out she observed no urine issuing from appellant‘s private part and, because he was facing the sidewalk, she opined appellant‘s claim was unlikely, i.e, if one is urinating in public, one, in her view, would nоt face the direction where on-lookers could observe the action.
{43} The jury, as the trier of fact, is entitled to believe all, part, or none of a witness‘s testimony. State v. Williams, 11th Dist. Lake No. 2012-L-078, 2013-Ohio-2040, 21 (citation omitted). “The trier of fact is in the best position to evaluate inconsistencies in testimony by observing the witness‘s manner and demeanor on the witness stand - attributes imрossible to glean through a printed record.” Id.
{44} In light of the evidence, we decline to conclude the jury lost its way in convicting appellant on count one. We therefore hold that conviction is consistent with the weight of the evidence.
{45} Appellant‘s final assignment of error is without merit.
{46} For the reasons discussed in this opinion, the judgment of the Trumbull County Court of Common Pleas is affirmed.
MARY JANE TRAPP, P.J.,
THOMAS R. WRIGHT, J.,
concur.