Court of Appeals of Ohio, Twelfth District, Butler
CRIMINAL APPEAL FROM BUTLER COUNTY AREA III COURT Case No.
Michael T. Gmoser, Butler County Prosecuting Attorney,
Michael Greer, Government Services Center, for appellee
N. Blauvelt, for appellant
1} Appellant, Agyemang Sparks, appeals the guilty
finding and 30-day jail sentence he received from the Butler
County Area III Court after the trial court found him guilty
of one count of public indecency. For the reasons outlined
below, we affirm Sparks' conviction but reverse and
remand this matter to the trial court for the limited purpose
2} Sparks was charged by private complaint with one
count of public indecency in violation of R.C. 2907.09(A)(1),
a fourth-degree misdemeanor. The charges arose after the
victim, B.C., alleged Sparks exposed his penis to her while
they were at work. The matter ultimately proceeded to a
one-day bench trial. During trial, both Sparks and B.C.
testified. As part of her testimony, B.C. testified that
Sparks "revealed himself" to her on three separate
occasions by lifting up his sweatshirt and showing her his
exposed penis. B.C. testified Sparks did this "very
discretely" from approximately one to two feet away.
Although Sparks denied ever showing his penis to B.C., the
trial court nevertheless found Sparks guilty upon finding
B.C.'s testimony "very credible,"
"truthful," "candid," and
"honest." The trial court then sentenced Sparks to
30 days in jail, with 20 of those days suspended, and ordered
Sparks to pay a $150 fine.
3} Sparks now appeals his conviction and 30-day jail
sentence, raising two assignments of error for
4} Assignment of Error No. 1:
5} APPELLANT'S CONVICTION WAS CONTRARY TO THE
MANIFEST WEIGHT OF THE EVIDENCE.
6} In his first assignment of error, Sparks argues
his conviction must be reversed because it was against the
manifest weight of the evidence. We disagree.
7} "A verdict can be against the manifest
weight of the evidence even though legally sufficient
evidence supports it." State v. Myers, 154 Ohio
St.3d 405, 2018-Ohio-1903, ¶ 140. A manifest weight of
the evidence challenge 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, this 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. Wilks, 154 Ohio St.3d 359,
2018-Ohio-1562, ¶ 168. This court will overturn a
conviction due to the manifest weight of the evidence only in
extraordinary circumstances when the evidence presented at
trial weighs heavily in favor of acquittal. State v.
Morgan, 12th Dist. Butler Nos. CA2013-08-146 and
CA2013-08-147, 2014-Ohio-2472, ¶ 34.
8} As noted above, Sparks was convicted of public
indecency in violation of R.C. 2907.09(A)(1). Pursuant to
that statute, no person shall "recklessly" expose
his or her "private parts" under circumstances
where 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." The Ohio Revised Code "does not
specifically define the term 'private parts.'"
State v. Mackie, 12th Dist. Warren No.
CA2010-08-080, 2011-Ohio-2102, ¶ 20. The Ohio Jury
Instructions manual nevertheless defines the term to mean
"genitals." State v. Jetter, 74 Ohio
App.3d 535, 536, fn. 1 (1 st Dist.1991), citing 4 Ohio Jury
Instructions (1991), Section 507.09. This would include
9} Sparks argues his conviction must be reversed
because B.C.'s testimony that he exposed his penis to her
at work lacked credibility. To support this claim, Sparks
raises a series of questions he believes prove the trial
court erred by finding B.C.'s testimony credible. This
includes questions as to why their employer did not take
"more serious action" against him if its
investigation revealed any truth to B.C.'s claims, why
the security cameras installed in their work area were
inoperable at the times when B.C. claims he exposed his penis
to her, and why the police did not pursue charges against
him. Sparks also claims B.C.'s testimony lacks
credibility when considering B.C. has not ruled out bringing
legal action against her now former employer. Therefore,
because he denied ever exposing his penis to B.C., Sparks
argues it was improper for the trial court to find him
10} Sparks' claims lack merit. While Sparks
argues B.C.'s testimony lacked credibility, the trial
court, as the trier of fact, was free to believe all, part,
or none of B.C.'s testimony. State v. Davis,
12th Dist. Butler No. CA2017-04-049, 2017-Ohio-8535, ¶
20. This includes B.C.'s testimony that Sparks exposed
his penis to her on three separate occasions while they were
at work. It is well-established that it is the trier of fact
- and not this court on appeal - that makes determinations of
credibility and the weight to be given to the evidence
presented at trial. State v. Erickson, 12th Dist.
Warren No. CA2014-10-131, 2015-Ohio-2086, ¶ 42, citing
State v. DeHass,10 Ohio St.2d 230, 227 (1967),
paragraph one of the syllabus. That is to say ...