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State v. Loudermilk

Court of Appeals of Ohio, First District, Hamilton

August 30, 2017

STATE OF OHIO, Plaintiff-Appellee,
v.
MICHAEL LOUDERMILK, Defendant-Appellant.

         Criminal Appeal From: Hamilton County Municipal Court TRIAL NO. C-15CRB-23628

          Joseph T. Deters, Hamilton County Prosecuting Attorney, and Alex Havlin, Assistant Prosecuting Attorney, for Plaintiff-Appellee,

          Raymond T. Faller, Hamilton County Public Defender, and David Hoffman, Assistant Public Defender, for Defendant-Appellant.

          OPINION

          Miller, Judge.

         {¶1} 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 process rights.

         {¶2} 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.

         {¶3} 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 was harmless.

         The Conviction Was Based on Sufficient Evidence and Was Not Contrary to Law

         {¶4} 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.

         {¶5} 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 syllabus.

         {¶6} 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.

         {¶7} 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.

         {¶8} 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 error.

         Exclusion of Impeachment ...


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