Court of Appeals of Ohio, Second District, Montgomery
Court Case No. 2017-CRB-3673 (Criminal Appeal from Municipal
STEPHANIE COOK, Atty. Reg. No. 0067101, Attorney for
J. VALLONE, Atty. Reg. No. 0064053, Attorney for
1} After a bench trial in the Dayton Municipal
Court, Brian Swiadek was convicted of public indecency, in
violation of R.C. 2907.09(A)(1), a misdemeanor of the fourth
degree. The trial court sentenced him to 30 days in jail, all
of which were suspended, imposed two years of basic probation
with certain conditions, and ordered him to pay a $50 fine
and court costs.
2} Swiadek's appellate counsel has filed a very
thorough brief pursuant to Anders v. California, 386
U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), indicating
that he has been unable to locate a viable issue on appeal.
We informed Swaidek that his attorney had filed an
Anders brief on his behalf and granted him 60 days
from that date to file a pro se brief. No pro se brief has
3} Pursuant to Anders, we must determine,
"after a full examination of all the proceedings, "
whether the appeal is "wholly frivolous."
Anders, 386 U.S. at 744; Penson v. Ohio,
488 U.S. 75, 109 S.Ct. 346, 102 L.Ed.2d 300 (1988). An issue
is not frivolous merely because the prosecution can be
expected to present a strong argument in reply. State v.
Pullen, 2d Dist. Montgomery No. 19232, 2002-Ohio-6788,
¶ 4. Rather, a frivolous appeal is one that presents
issues lacking arguable merit, which means that, "on the
facts and law involved, no responsible contention can be made
that it offers a basis for reversal." State v.
Marbury, 2d Dist. Montgomery No. 19226, 2003-Ohio-3242,
¶ 8, citing Pullen at ¶ 4.
4} We have conducted our independent review of the
record pursuant to Penson, and we agree with
appellate counsel that there are no non-frivolous issues for
review. Accordingly, the trial court's judgment will be
I. Factual and Procedural History
5} The State's evidence at trial established the
6} Swiadek lives next door to Laura and Louis Chism.
The homes are situated very close to each other.
Swiadek's residence has a front porch, whereas the
Chisms' home has a porch running along the right side of
the house, perpendicular to Swiadek's porch. Only five or
six feet and a chain-link fence separate the Chisms'
porch from Swiadek's porch. At the relevant time, the
Chisms had lived in their home for approximately 25 years;
Swiadek had lived in his home for approximately seven years.
7} On the evening of June 5, 2017, Mrs. Chism came
outside to get her mail and saw Swiadek sitting on his porch.
Swiadek made derogatory comments toward Mrs. Chism, and she
went back inside and told her husband. Mr. Chism went outside
and asked Swiadek what he was doing. Swiadek responded that
he was "just being an ass." The Chisms and Swiadek
started "yelling back and forth at each other."
Mrs. Chism called the police about Swiadek's behavior,
but the police had more pressing calls and did not respond.
The "back and forth" continued throughout the
8} At approximately 11:20 p.m., after Mrs. Chism
went to bed, she heard someone outside kicking her fence. She
went to the side door, which faced Swiadek's porch, and
saw Swiadek sitting on his porch, apparently trying to kick
the fence down. Mrs. Chism turned on her porch light and
opened the side door, at which point Swiadek exposed his
genitals and began to urinate over her husband's flowers.
Mrs. Chism testified that Swiadek did not attempt to cover
himself; to the contrary, he shook his genitals at her and
said, "What are you going to do about it?" Mrs.
Chism called to Mr. Chism to "look there, " and Mr.
Chism also saw Swiadek "sitting over there with his
private parts out * * * trying to urinate over the
fence." Another argument ensued between Swiadek and Mr.
Chism, and Mrs. Chism called the police again (several
times). The police arrived shortly after midnight.
9} Swiadek testified on his own behalf. Swiadek
stated that the first verbal altercation began after Mrs.
Chism got her mail and called him a derogatory name. Swiadek
denied that he later exposed himself to the Chisms and
urinated on their property. He stated that he wanted to be
done with the argument, and he told the Chisms to stop
talking to him. He also testified that the boards on the end