State v. ShawState v. Shaw
Joshua W. Beasley, Fayette County Special Prosecutor, for appellee.
OPINION
HENDRICKSON, P.J.
{¶ 1} Appellant, Troy J. Shaw, appeals from his conviction and sentence in the Washington Court House Municipal Court for voyeurism. For the reasons set forth below, we affirm his conviction and sentence.
{¶ 2} On August 2, 2022, a complaint was issued charging appellant with one count of voyeurism in violation of
{¶ 3} Appellant pled not guilty to the charge and a jury trial was held on May 26, 2023. At trial, the state presented testimony from Criswell, two Washington Court House police officers, and Jared Scott, a computer forensic specialist in the cybеr crimes unit at the Ohio Bureau of Criminal Investigation (BCI). The state also introduced into evidence a Ring camera that had been discovered in appellant‘s bathroom, appellant‘s cellphone, and several videos recovered from appellant‘s phone.
{¶ 4} Criswell testified that on March 8, 2021, she was working at appellant‘s home in Washington Court House as a caregiver for appellant‘s wife, who required 24-hour care after suffering an anoxic brain injury. Criswell explained she worked as an STNA, a state-tested nurse aide, responsible for getting appellant‘s wife out of bed, brushing her teeth, and changing her in the mornings. In addition to working in appellant‘s home, Criswell also worked at a nursing home, at a tattoo shop, and did some tattoo modeling. Frequently, at the end of her shifts at appellant‘s home, before going to her next job, Criswell would change her clothing in the home‘s only bathroom.
{¶ 5} Criswell was aware that appellant had cameras in the living room and bedroom of his home that allowed him to observe and listen in on what was happening in the home. She was unaware, however, that he had placed a camera in the bathroom of his home. Throughout the morning of March 8, 2021, Criswell used the restroom multiple times before she discovered that appellant had concealed a Ring camera in the bathroom. Criswell found the camera hidden among toiletry items when looking for toothpaste. The camera had a washrag duct tapеd over top of it, with a hole cut in the washrag. It had been set up to record the toilet and sink areas.
{¶ 6} After discovering the camera, Criswell called her mother. Appellant, who
{¶ 7} Criswell testified that at no point in time had appellant expressed to her that he had put the camera in the bathroom out of concern that she, other caregivers, or family members in the home were not washing their hands. Criswell did not recall seeing any signs posted in the house about handwashing. Criswell testified about her own hygiene habits, explaining that after she used the restroom, she would use hand sanitizer rather than wash her hands at the bathroom sink. Criswell preferred to do this as appellant‘s bathroom had “scented hand wash,” which she did not believe killed as many germs as hand sanitizer. As seen on one of the videos recovered from appellant‘s phone, on one occasion, after using the restroom, Criswell turned on the water in the bathroom sink but she did not wash her hands. She stated she did this because she did not recall that the hand soap was scented until after she turned on the faucet.
{¶ 8} Criswell testified that she did not consent to being filmed while she was in the bathroom or using the restroom. Criswell believed appellant was interested in seeing her in a state of undress. In addition to the camera being set up to record the toilet and sink area, Criswell noted that it was also pointed towards the only open area where she could change her clothing. In the past, appellant had expressed an interest in her personal life, telling her he had taken it upon himself to track down a website where a competition was being held for the selection of a cover model for the front page of a tattoo magazine. Appellant informed Criswell he had found the website and voted for her.
{¶ 10} Appellant arrived on scene shortly thereafter. Because Officer Rosato was aware that Ring cameras work on a cloud-based system that permit the owners of the device to access the recorded videos through an application on their phone, he seized appellant‘s cellphone. Appellant advised Officer Rosato that he had put the camera up in the bathroom because of his grandchildren. At no point in time while he was in appellant‘s home had Officer Rosato observed a sign advising people to wash their hands.
{¶ 11} Sergeant Jonathon Sever testified that he obtained a warrant to access the contents of appellant‘s cellphone and sent the phone to BCI for data extraction. Using Cellebrite and GreyKey programs, Scott recovered multiple videos recordеd on March 8, 2021 by the bathroom Ring camera. Those videos were played for the jury. In the videos, appellant appeared to be checking the image that the Ring camera captured. Appellant, cellphone in hand, dropped his pants while standing in front of the toilet. He did not use the restroom, but rather pulled his pants up and left the bathroom. Appellant‘s naked buttocks were observed on the recording. In another video, appellant, again looking at his phone, makes an adjustment to the shelf where the camera is hidden. In yet another video, appellant stands at the bathroom sink, lifts his shirt, and rubs his chest while looking down at his cellphone, which he had sitting on the counter of the sink. Other videos
{¶ 12} Following the state‘s presentation of its case-in-chief, appеllant moved for acquittal pursuant to
{¶ 13} Appellant admitted that he panicked when Criswell found the bathroom camera and he lied about it being placed there to keep an eye on his grandchildren. He further admitted that he knew from maneuvering the camera and seeing his own buttocks that others who used the toilet would also be showing their buttocks to the camera. Although he did not take steps to avoid capturing others’ private parts, he denies that the camera was hidden with the purpose of viewing оthers’ private areas. As for the video where he lifted his shirt and rubbed his chest after maneuvering the camera, he denies that he was trying to capture a topless person who may have been standing in the bathroom. He claims he was “just checking [him]self out” as he had been doing some
{¶ 14} After considering the foregoing testimony and evidence, the jury found appellant guilty of voyeurism. The trial court proceeded immediately to sentencing. Defense counsel and appellant both addressed the court, with appellant reading a letter of apology. Thereafter, the trial court imposed a 90-day jail term and a $750 fine on appellant and classified him as a tier I sex offender.
{¶ 15} Appellant timely appealed, raising two assignments of error for review.
{¶ 16} Assignment of Error No. 1:
{¶ 17} THE TRIAL COURT FAILED TO CONSIDER THE MANIFEST WEIGHT OF THE EVIDENCE STANDARD AND CONSIDER THE OHIO CRIM. RULE 29 MOTION.
{¶ 18} In his first assignment of error, appellant argues the trial court erred by denying his
{¶ 19}
{¶ 20} Whether the evidence presented at trial is legally sufficient to sustain a verdict is a question of law. State v. Thompkins, 78 Ohio St.3d 380, 386 (1997); State v. Grinstead, 194 Ohio App.3d 755, 2011-Ohio-3018, ¶ 10 (12th Dist.). When reviewing the sufficiency of the evidence underlying a criminal conviction, an appellate court examines the evidence in order to determine whether such evidence, if believed, would convince
{¶ 21} A manifest weight of the evidence challenge, on the other hand, 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, ¶ 14. To determine whether a conviction is against the manifest weight of the evidence, the reviewing 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. Graham, 12th Dist. Warren No. CA2008-07-095, 2009-Ohio-2814, ¶ 66. “While appellate review includes the responsibility to consider the credibility of witnesses and weight given to the evidenсe, ‘these issues are primarily matters for the trier of fact to decide.‘” State v. Barnes, 12th Dist. Brown No. CA2010-06-009, 2011-Ohio-5226, ¶ 81, quoting State v. Walker, 12th Dist. Butler No. CA2006-04-085, 2007-Ohio-911, ¶ 26. An appellate court, therefore, will overturn a conviction due to the manifest weight of the evidence only in extraordinary circumstances to correct a manifest injustice when the evidence presented at trial weighs heavily in favor of acquittal. Id., citing Thompkins, 78 Ohio St.3d at 387. Furthermore, although the legal concepts of sufficiency of the evidence and weight of the evidence are both quantitatively and qualitаtively different, “[a] determination that a conviction is supported by the manifest
{¶ 22} Appellant was convicted of voyeurism in violation of
{¶ 23} Following our review of the record, we find that appellant‘s conviction for voyeurism is supported by sufficient evidence and is not against the manifest weight of the evidence. The state presented testimony and evidence proving all the essential elements of the offense, including the disputed “purpose of viewing the private areas” of the other person element. Through the testimony of Criswell, Officer Rosato, and Scott, the state established that appellant hid the camera in the bathroom and, without Criswell‘s
{¶ 24} Notwithstanding thе foregoing evidence, appellant contends the state failed to prove he put the camera in the bathroom with the purpose of viewing Criswell‘s private areas. He contends the only direct evidence of intent offered at trial was his own testimony and that testimony established the camera was placed in the bathroom to observe handwashing practices. However, as the supreme court has long recognized, “[i]ntent ‘can never be proved by the direct testimony of a third person and it need not be. It must be gathered from the surrounding facts and circumstances.‘” State v. Lott, 51 Ohio St.3d 160, 168 (1990), quoting State v. Johnson, 56 Ohio St.2d 35, 38 (1978). Looking at the facts and circumstances surrounding appellant‘s actions, the jury was entitled to find that appellant had surreptitiously placed the camera in the bathroom with the intent of viewing Criswell‘s buttocks and other private areas. Appellant was captured on recordings maneuvering and angling the camera to get his desired view. Appellant tested the angle of the camera to ensure that the buttocks of an individual who used the toilet was visible. He also tested whether an individual changing in the open area near the bathroom sink would be visible on camera by standing by the sink, lifting his shirt, and rubbing his chest while looking at his cellphone.
{¶ 25} Appellant testified that despite knowing that the angle of the Ring camera would capture the private areas of an individual using the restroom or changing in the
{¶ 26} Given the testimony and video evidence presented at trial, the jury was entitlеd to find beyond a reasonable doubt that appellant committed voyeurism. Appellant‘s conviction is supported by sufficient evidence and is not against the manifest weight of the evidence. The jury did not lose its way and create such a manifest miscarriage of justice that appellant‘s conviction must be reversed and a new trial ordered. Appellant‘s first assignment of error is, therefore, overruled.
{¶ 27} Assignment of Error No. 2:
{¶ 28} THE TRIAL COURT FAILED TO ALLOW A SENTENCING HEARING UNDER OHIO CRIM.R. 32, ALSO COMPRISING INADEQUATE ASSISTANCE OF COUNSEL.
{¶ 29} In his second assignment of error, appellant argues the trial court errеd by sentencing him immediately after conviction and by denying him the right to allocution. Appellant contends that the trial court did not comply with the dictates of
Right to Allocution
{¶ 30}
{¶ 31} At the time of imposing a sentence,
{¶ 32} Although not considered a constitutional right, the right of allocution is firmly rooted in the common-law tradition. State v. Wesley, 12th Dist. Butler No. CA2015-04-077, 2015-Ohio-5031, ¶ 23; State v. Copeland, 12th Dist. Butler No. CA2007-02-039, 2007-Ohio-6168, ¶ 6. As a result, this right is “‘both absolute and not subject to waiver due to a defendant‘s failure to object.‘” Haynes at ¶ 27, quoting State v. Collier, 2d Dist. Clark Nos. 2006 CA 102 and 2006 CA 104, 2007-Ohio-6349, ¶ 92. Therefore, in cases where the trial court imposes a sentence without first asking the defendant whether he wishes to exercise his right of allocution, “‘resentencing is required unless the error is invited error or harmless error.‘” State v. Osie, 140 Ohio St.3d 131, 2014-Ohio-2966, ¶ 179, quoting State v. Campbell, 90 Ohio St.3d 320 (2000), paragraph three of the syllabus.
{¶ 33} Contrary to appellant‘s assertions, the record in the present case reflects that the trial court complied with
{¶ 34} After defense counsel finished speaking, the court directly addressed appellant and the following discussion occurred:
[THE COURT]: Mr. Shaw, anything you‘d like to say?
[Appellant]: No sir.
[Defense Counsel]: You want to read the statement, right?
[Appellant]: Oh, yes sir, okay.
[THE COURT]: Is she, [the victim] does not wish to be in here?
[Prosecutor]: That‘s correct, Your Honor. [THE COURT]: Okay.
[Appellant]: Erin, I‘m sorry for putting you in this situation. I‘m sorry for invading your privacy. I‘m sorry for putting you in the position of questioning trust in people, especially being in the profession you are in. While a lot of the choices and decisions I [was] making in March of 2021 were made during troubled times, under distress because of my personal situation and Covid, by no means will I ever try to justify the idea of staging a camera and invading your privacy. Any information that I would have obtained was done so only in an effort to protect the person I lovеd and cared for, for more than half my life. Any information obtained would not have been exposed to anyone at any time. Sincerely, Troy Shaw.
[THE COURT]: Okay...Did you wish to make any comments on the case?
[Prosecutor]: Your Honor, I‘ve had discussions with the victim in this case, her life has been greatly impacted. She checks for cameras everywhere she goes, especially in bathrooms now. In fact, she noted to me that she noted a camera on a shelf just outside of the women‘s restrоom in this building. So she is keenly aware of, of those things and taking precautions for those. But based [on] my conversations with her, we do have a recommendation to make of probation. We are not asking for jail time in this particular case. That‘s with the involvement and consent of the victim. We believe that registration as a tier I sex offender for 15 years is sufficient punishment.
[THE COURT]: I don‘t think it‘s a probation type case right now. * * *
{¶ 35} Appellant contends the foregoing was insufficient to satisfy
Ineffective Assistance of Counsel Claim
{¶ 36} Appellant argues that defense counsel provided ineffective assistance of counsel because counsel failed to object to the lack of a full sentencing hearing or the violation of appellant‘s right to allocution. “[T]o prevail on an ineffective-assistance-of-counsel claim, a defendant must prove that counsel‘s performance was deficient and that the defendant was prejudiced by counsel‘s deficient performance.” State v. Davis, 159 Ohio St.3d 31, 2020-Ohio-309, ¶ 10, citing State v. Bradley, 42 Ohio St.3d 136, 141-142 (1989) and Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052 (1984). Here, appellant cannot prоve either of these requirements. As discussed above, appellant was provided with a full sentencing hearing and given the right to allocution. Defense counsel was, therefore, not deficient and appellant cannot demonstrate prejudice.
{¶ 37} As appellant did not receive ineffective assistance from his trial counsel and the record reflects the trial court complied with the dictates of
{¶ 38} Judgment affirmed.
PIPER and BYRNE, JJ., concur.