Court of Appeals of Ohio, First District, Hamilton
Appeal From: Hamilton County Municipal Court TRIAL NO.
T. Deters, Hamilton County Prosecuting Attorney, and Alex
Havlin, Assistant Prosecuting Attorney, for
Raymond T. Faller, Hamilton County Public Defender, and David
Hoffman, Assistant Public Defender, for Defendant-Appellant.
Defendant-appellant Michael Loudermilk was charged under R.C.
2907.09(A)(1) with public indecency involving a minor. We
hold: (1) "physical proximity" as used in R.C.
2907.09(A)(1) means the victim is near enough to observe the
offender's private parts; (2) a criminal defendant is not
required to disclose evidence used only for the purpose of
impeaching a witness; and (3) intermediate appellate courts
have jurisdiction to review a claim of judicial bias that is
alleged to result in the violation of a defendant's due
Loudermilk, shirtless and in blue nylon running shorts, and
his wife were removing drywall from the first floor of their
house when 16-year-old AM. walked by on the opposite side of
the street. AM. heard what sounded like knocking on glass.
She turned and saw Loudermilk pull down his shorts and expose
his penis while standing at the window. AM. proceeded home in
shock and told her mother.
A jury found Loudermilk guilty. The court sentenced him to a
suspended term of 90 days in jail, and one year of community
control with electronic monitoring for 60 days and referral
to the court clinic. On appeal, Loudermilk asserts four
assignments of error. First, Loudermilk claims his conviction
was based on insufficient evidence and was contrary to law.
Second, he argues that the court abused its discretion when
it excluded impeachment evidence for not having been
disclosed and excluded a portion of the testimony from the
defendant's investigator. Third, Loudermilk complains
that the trial court committed plain error when it admitted
unsworn testimony. Finally, he asserts that he was denied a
fair trial because his trial judge was biased. Although we
find merit in Loudermilk's impeachment evidence argument,
we affirm the trial court's judgment because this error
Conviction Was Based on Sufficient Evidence and Was Not
Contrary to Law
In his first assignment of error, Loudermilk claims his
conviction was based on insufficient evidence and was
contrary to law. Specifically, Loudermilk claims the state
failed to establish that A.M. was in physical proximity to
him, as required by R.C. 2907.09(A)(1), because he was inside
the house and she was on the sidewalk across the street. He
asserts his conviction was contrary to the manifest weight of
the evidence because the windows on the first floor of
Loudermilk's home were tinted, which would have
obstructed A.M.'s view. He further challenges AM.'s
and her mother's credibility and points to contradictory
testimony regarding the color of his shorts.
In a challenge to the sufficiency of the evidence, the
question is whether after viewing the evidence in the light
most favorable to the prosecution, any rational trier of fact
could have found all the essential elements of the crime
beyond a reasonable doubt. State v. Jenks, 61 Ohio
St.3d 259, 574 N.E.2d 492 (1991), paragraph two of the
syllabus. In reviewing a challenge to the weight of the
evidence, we must review the entire record, weigh the
evidence, consider the credibility of the witnesses, and
determine whether the trier of fact clearly lost its way and
thereby created a manifest miscarriage of justice. State
v. Thompkins, 78 Ohio St.3d 380, 387, 678 N.E.2d 541
(1997), quoting State v. Martin, 20 Ohio App.3d 172,
485 N.E.2d 717 (1st Dist.1983), paragraph three of the
R.C. 2907.09(A)(1) prohibits a person from recklessly
exposing his private parts under circumstances in which the
person's conduct is likely to be viewed by and affront
others who are in that person's physical proximity,
provided those persons are not members of the same household.
AM. testified that she was walking down the street when she
repeatedly heard what sounded like someone knocking on glass.
When she turned she saw Loudermilk expose his penis to her.
Loudermilk told a very different story. He testified that he
was working with the windows open when he noticed A.M.
standing on the sidewalk staring at him for two or three
minutes before walking away. Essentially, Loudermilk urges us
to believe him over A.M. But, Loudermilks claim that A.M.
stared at him for two or three minutes through an open window
is contrary to his contention that A.M. could not see him
because the window was tinted. We cannot fault the jury for
believing AM. He also challenges the credibility of the
state's witnesses. The jury was in the best position to
judge credibility of witnesses and the weight to be given to
the evidence. State v. DeHass, 10 Ohio St.2d 230,
227 N.E.2d 212 (1967), paragraph one of the syllabus.
Loudermilk also asserts that a person inside his home cannot
be in "physical proximity, " as required by the
statute, to a person across the street. Revised Code Section
2907.09 does not define "physical proximity."
Therefore, we apply its common, ordinary meaning. See
Cincinnati Metro. Hous. Auth. v. Edwards, 174 Ohio
App.3d 174, 2007-Ohio-6867, 881 N.E.2d 325, ¶ 19 (1st
Dist.). "Physical" means "[o]f, relating to,
or involving someone's body as opposed to mind" and
"proximity" means "[t]he quality, state, or
condition of being near in time, place, order, or
relation." Black's Law Dictionary 1331 and
1421 (10th Ed.2014). Therefore, we interpret "physical
proximity, " as used in R.C. 2907.09, as meaning that
the victim is near enough to observe the offender's
private parts. AM. was on the sidewalk across the street when
she heard the sound that drew her attention to Loudermilk.
The fact that Loudermilk was inside the house and AM. was
across the street does not mean AM. could not be in physical
proximity to Loudermilk. AM. was near enough to him to see
his penis through an open window when he pulled down his
shorts. This evidence was sufficient to establish that AM.
was in physical proximity to Loudermilk.
Our review of the record reveals that the state presented
sufficient, credible evidence from which the factfinder could
have reasonably concluded that the state proved each element
of the offense beyond a reasonable doubt. See Jenks
at paragraph two of the syllabus. Additionally, our review of
the entire record fails to persuade us that the factfinder
clearly lost its way and created such a manifest miscarriage
of justice that we must reverse Loudermilk's conviction
and order a new trial. See Martin at 175. As a
result, we overrule Loudermilk's first assignment of
of Impeachment ...