Court of Appeals of Ohio, Twelfth District, Warren
CRIMINAL APPEAL FROM MASON MUNICIPAL COURT Case No.
Bethany S. Bennett, City of Mason Prosecuting Attorney,
Matthew Nolan, for appellee
A. Newburger, for appellant
1} Appellant, Phillip Harmon, appeals his conviction
in the Mason Municipal Court after a jury found him guilty of
one count of first-degree misdemeanor public indecency. For
the reasons outlined below, we affirm.
2} On October 22, 2018, a complaint was filed
charging Harmon with one count of public indecency in
violation of R.C. 2907.09(A)(3). As alleged in the complaint,
the charge arose after Harmon "exposed himself" to
the victim while in a retail store changing room "with
his penis in his hand while masturbating." Because there
is no dispute that Harmon had two prior public indecency
convictions, the offense was charged as a first-degree
misdemeanor in accordance with R.C.
2907.09(C)(3). Harmon pled not guilty and the matter was
scheduled for a jury trial.
3} On January 15, 2019, three days prior to when
trial was set to begin, Harmon filed a motion in limine. In
his motion, Harmon sought an order barring the state from
introducing any testimony or evidence regarding his two prior
public indecency convictions. Discussing the matter in
chambers with the trial court judge, the parties stipulated
that Harmon had two prior public indecency convictions in
Hamilton County in 2002 and 2013. Due to this stipulation,
the parties agreed that there was no need for the state to
introduce any testimony or evidence regarding Harmon's
two prior convictions at trial. The trial court judge also
agreed that he would not mention Harmon's two prior
convictions to the jury as part of the trial court's jury
instructions. The trial court filed an entry granting
Harmon's motion in limine later that day.
4} On January 18, 2019, the jury trial proceeded as
scheduled. At trial, the jury heard testimony from both
Harmon and the victim who witnessed Harmon masturbating in a
retail store changing room. Specifically, as the victim
testified, the victim "visually saw [Harmon]
masturbating," "touching his penis, pleasuring
himself." The victim also testified that "it was
pretty evident that [Harmon] was masturbating" because
his left hand was moving "back and forth * * * on his
penis" creating a "fapping noise." Based on
this testimony, the jury returned a verdict finding Harmon
guilty as charged. Due to the parties' prior stipulation,
the record indicates that there was no testimony or evidence
introduced at trial regarding Harmon's two prior public
indecency convictions. There was also no mention of
Harmon's two prior convictions by the trial court judge
as part of the trial court's jury instructions.
5} After the jury returned its verdict, the trial
court immediately proceeded to sentencing and sentenced
Harmon to 180 days in jail, with 90 of those days suspended,
and placed Harmon on community control for a period of five
years. After the trial court issued its sentencing decision,
Harmon objected and claimed that he could not be found guilty
of public indecency as a first-degree misdemeanor because the
state failed to prove that he had two prior public indecency
convictions at trial. Harmon instead claimed that he could be
only found guilty of public indecency as a third-degree
misdemeanor. Noting that the parties had previously agreed
"that nothing could be said about the priors to enhance
it to an M1 [at trial]," the trial court judge overruled
6} Harmon now appeals his conviction, raising the
following single assignment of error for review.
7} THE APPELLANT'S CONVICTION FOR PUBLIC
INDECENCY, A MISDEMEANOR OF THE FIRST DEGREE, MUST BE VACATED
AS BEING UNSUPPORTED BY CONSTITUTIONALLY SUFFICIENT EVIDENCE.
8} In his single assignment of error, Harmon argues
that his conviction for first-degree misdemeanor public
indecency was not supported by sufficient evidence because
the state failed to prove that he had two prior public
indecency convictions at trial. We disagree.
9} Whether the evidence presented is legally
sufficient to sustain a verdict is a question of law.
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 to determine whether
such evidence, if believed, would convince the average mind
of the defendant's guilt beyond a reasonable doubt.
State v. Intihar, 12th Dist. Warren CA2015-05-046,
2015-Ohio-5507, ¶ 9. The relevant inquiry is
"'whether, after viewing the evidence in a light
most favorable to the prosecution, any rational trier of fact
could have found the essential elements of the crime proven
beyond a reasonable doubt.'" State v.
Erdmann, 12th Dist. Clermont Nos. CA2018-06-043 and
CA2018-06-044, 2019-Ohio-261, ¶ 21, quoting State v.
Jenks, 61 Ohio St.3d 259 (1991), paragraph two of the
syllabus. This test "requires a determination as to
whether the state has met its burden of production at
trial." State v. Boles, 12th Dist. Brown No.
CA2012-06-012, 2013-Ohio-5202, ¶ 34, citing State v.
Wilson, 12th Dist. Warren No. CA2006-01-007,
2007-Ohio-2298, ¶ 33.
10} As noted above, Harmon argues that his
conviction for first-degree public indecency was not
supported by sufficient evidence because the state failed to
prove that he had two prior public indecency convictions at
trial. However, as the record plainly reveals,
the parties entered into a stipulation that Harmon had two
prior public indecency convictions while discussing the
matter in chambers with the trial court judge three days
prior to trial. The record also plainly reveals that the
parties agreed that there was no need for the state to
introduce any evidence regarding Harmon's two prior
convictions at ...