[Cite as State v. Flanagan, 2013-Ohio-5456.]




                            IN THE COURT OF APPEALS OF OHIO
                               SECOND APPELLATE DISTRICT
                                 MONTGOMERY COUNTY

 STATE OF OHIO                                     :
                                                   :     Appellate Case No. 25520
          Plaintiff-Appellee                       :
                                                   :     Trial Court Case No. 12-CRB-2045
 v.                                                :
                                                   :
 ERIC C. FLANAGAN                                  :     (Criminal Appeal from
                                                   :     (Dayton Municipal Court)
          Defendant-Appellant                      :
                                                   :
                                               ...........
                                               OPINION
                            Rendered on the 13th day of December, 2013.
                                               ...........

JOHN J. DANISH, Atty. Reg. #0046639, and STEPHANIE L. COOK, Atty. Reg. #0083743, by
MATTHEW KORTJOHN, Atty. Reg. #0083743, City of Dayton Prosecutor’s Office, 335 West
Third Street, Room 372, Dayton, Ohio 45402
       Attorney for Plaintiff-Appellee

ROBERT ALAN BRENNER, Atty. Reg. #0067714, Robert Alan Brenner, LLC, Post Office Box
341021, Beavercreek, Ohio 45434-1021
      Attorney for Defendant-Appellant

                                               .............

HALL, J.,

        {¶ 1}     Eric C. Flanagan appeals from his conviction and sentence on one count of

public indecency in violation of R.C. 2907.09(A)(3), a third-degree misdemeanor.

        {¶ 2}     In two related assignments of error, Flanagan challenges the legal sufficiency and
manifest weight of the evidence to support his conviction.

       {¶ 3}     The record reflects that Flanagan’s conviction stems from his participation in

sexual conduct in a parked car in a parking lot. At his jury trial, the State presented testimony

from four witnesses. The first witness was Detective Raymond St. Clair. He testified that he

observed Flanagan stop and pick up a woman on Xenia Avenue in Dayton. Based on his

experience and the woman’s behavior, St. Clair suspected that she was a prostitute. He proceeded

to follow Flanagan’s vehicle for ten to fifteen minutes in an unmarked car. He watched as

Flanagan eventually pulled behind an industrial building at the end of Dayton Wire Parkway near

Troy Street. It was approximately 8:20 p.m. when Flanagan parked near the building. St Clair

testified that the sun was setting and it was “getting close to getting dusk.”

       {¶ 4}     Staying out of Flanagan’s sight, St. Clair approached the south side of the

building on foot and waited for assistance. While waiting, he peered around the corner and saw

Flanagan’s car parked on the west side of the building, which housed a business known as

Dayton Wire Products. Flanagan’s car was facing south near the building. After a few minutes,

Detectives Doug George, Brian Dedrick, and Jason Barnes arrived to assist St. Clair. The

detectives then made a coordinated advance toward Flanagan’s car. St. Clair rushed the car on

foot while the other detectives drove up to it in two vehicles with their high beams on.

       {¶ 5}     St. Clair testified that he shined a flashlight in the driver’s window. He saw

Flanagan reclined in the driver’s seat with his pants around his knees. Flanagan’s passenger,

Alicia Albrektson, was bent down with her head in his lap. According to St. Clair, she appeared

to be performing oral sex. Upon seeing the detectives, Albrektson became startled and sat up,

exposing Flanagan’s penis to the detectives.

       {¶ 6}    The State’s next witness was Detective George. He testified that it was dusk and
                                                                                                 3


“becoming dark” when he arrived at Dayton Wire Products. George turned on his high beams and

drove his truck “nose-to-nose” with Flanagan’s car. He saw Flanagan reclined in the driver’s seat.

Because of the height difference between Flanagan’s sports car and the detective’s truck, George

could see Albrektson’s head in Flanagan’s lap. Based on the circumstances, he could tell that

Albrektson was performing oral sex.

       {¶ 7}    The State’s third witness was Detective Dedrick. He testified that it was dusk but

not dark when he arrived at the scene. Dedrick explained that he and Detective Barnes drove

around the building and stopped about ten feet from the passenger’s side of Flanagan’s car. He

saw Flanagan reclined in the driver’s seat. He did not notice Albrektson until she “popped up”

when he was approximately twenty feet from Flanagan’s car. Dedrick testified that she appeared

to be startled, and he opined that she was performing oral sex.

       {¶ 8}    The State’s final witness was Detective Barnes. He testified that he rode with

Detective Dedrick to the scene. He stated that it was “dusk and getting dark.” Upon approaching

Flanagan’s car, he saw Flanagan reclined in the driver’s seat. While still in Detective Dedrick’s

vehicle and with the headlights on, he was able to see Albrektson leaning over toward the

driver’s seat. Dedrick quickly exited the vehicle and, using a flashlight, was able to see

Albrektson’s head in Flanagan’s lap. Based on Albrektson’s position, Barnes believed she was

performing oral sex.

       {¶ 9}    Following the State’s case, the trial court overruled Flanagan’s Crim.R. 29

motion for judgment of acquittal. Flanagan then testified in his own defense and denied engaging

in sexual activity with Albrektson. He explained that he and Albrektson were friends and that

they went behind the building to talk privately and to drink beer. Flanagan stated that it was
                                                                                                  4


“starting to get dark” at the time. He testified that he purposely sought out an area that was not

populated. When he found the industrial area around Dayton Wire Products, he “figured there

wouldn’t be very many people out” and “it would basically be an abandoned area.” Flanagan also

testified that the side windows of his car were legally tinted. On cross examination, he admitted

knowing there were some businesses in the area where he parked. He stated, however, that he

made sure Dayton Wire Products was not open for business and that no “traffic flow” was

present.

       {¶ 10} Based on the evidence presented, a jury found Flanagan not guilty of violating

R.C. 2907.09(A)(1) or R.C. 2907.09(A)(2). It found him guilty of violating R.C. 2907.09(A)(3).

The trial court imposed a partially suspended jail sentence, a fine, and other sanctions. The trial

court stayed execution of the sentence pending the outcome of this appeal.

       {¶ 11} In his first assignment of error, Flanagan contends the State presented legally

insufficient evidence to support his conviction. When a defendant challenges the sufficiency of

the evidence, he is arguing that the State presented inadequate evidence on an element of the

offense to sustain the verdict as a matter of law. State v. Hawn, 138 Ohio App.3d 449, 471, 741

N.E.2d 594 (2d Dist.2000). “An appellate court’s function when reviewing the sufficiency of the

evidence to support a criminal conviction is to examine the evidence admitted at trial to

determine whether such evidence, if believed, would convince the average mind of the

defendant’s guilt beyond a reasonable doubt. 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. Jenks, 61 Ohio

St.3d 259, 574 N.E.2d 492 (1991), paragraph two of the syllabus.
                                                                                                                                      5


        {¶ 12} With the foregoing standards in mind, we find legally insufficient evidence to

convict Flanagan under R.C. 2907.09(A)(3), which states:

                 No person shall recklessly do any of the following, under circumstances in

        which 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: * * * Engage in conduct that to an ordinary observer would appear to

        be sexual conduct[.]

        {¶ 13} Viewing the evidence in a light most favorable to the State, we do not believe a

rational trier of facts could have found all of the foregoing elements proven beyond a reasonable

doubt. The evidence certainly is sufficient to support a finding that Flanagan engaged in conduct

that to an ordinary observer would appear to be sexual conduct and that his conduct would be

likely to affront others.

        {¶ 14} We find no evidence, however, to support a finding that Flanagan engaged in

such conduct under circumstances in which it was likely to be viewed by others. The evidence

before us suggests that Flanagan’s conduct was unlikely to be observed by anyone. Ariel

photographs of the scene show that Flanagan stopped his car in a relatively isolated, industrial

area. The record contains no evidence of any vehicles or people present at Dayton Wire Products

other than Flanagan, Albrektson (who undoubtedly was not affronted), and the detectives. (Trial

Tr. at 83). Based on the photographs, it appears that Flanagan’s car was fairly well concealed on

three sides. The only direction from which he reasonably could have been seen was the

south—the direction toward which his car faced.1 From that direction, Flanagan’s car may have


          1
          Although there was another building and parking lot beyond some trees to the west of Dayton Wire Products, the record contains
                                                                                                                                            6


been visible from two parking lots of a business south of Dayton Wire Products or, beyond that,

from Heid Drive.

         {¶ 15} At trial, Detective St. Clair testified that, from his vantage point at the corner of

the Dayton Wire Products building, he could see at least one vehicle moving in the parking lots to

the south. He also could see some traffic on Heid Drive. (Id. at 80-81). St. Clair estimated that the

distance from Dayton Wire Parkway itself (which was just south of the Dayton Wire Products

building) to the south parking lots where he saw vehicular movement was seventy feet. St. Clair

estimated that Heid Drive was another seventy feet beyond the south parking lots. (Id. at 81).2

He opined that occupants of vehicles in the south parking lots could have seen where Flanagan

had parked. (Id. at 82). Lacking in his testimony, however, is whether anyone in these locations

could see people inside the car or what was happening therein.

         {¶ 16} It does not reasonably follow that anyone in the south parking lots or on Heid

Drive likely would have seen Flanagan and Albrektson, at dusk, engaged in conduct that

appeared to be sexual. From his position at the corner of the building near Flanagan’s car, St.

Clair himself could not see Flanagan’s lap as the detective was near the ground. (Id. at 100).

After coming around the corner, St. Clair was able to see Albrektson “leaned over in [Flanagan’s]

lap.” (Id. at 87). He could not say whether any part of Flanagan’s body would have been visible

from Heid Street or the south parking lots. (Id. at 101).

         {¶ 17} Detective George similarly testified that he first saw Albrektson when he pulled

 no evidence of activity there or any ability to see what Flanagan was doing from there.
            2
             St. Clair admitted he did not measure the distances. Id. But his estimates are more than generous for the prosecution. The
 well-defined aerial photos indicate those distances are more than double his estimates, making the distance from Flanagan’s car to Heid Drive
 over 100 yards.
                                                                                                                                        7


his truck nose-to-nose with Flanagan’s vehicle with his high beams activated. (Id. at 111).

George estimated that the south parking lots were two-hundred feet away from where Flanagan

was parked. When asked by the prosecutor whether a person in the south parking lots would have

been able to see “Albrektson’s head going up or down in the defendant’s front seat,” George

responded affirmatively. Although this testimony might support a finding that Flanagan at least

could have been viewed engaging in apparent sexual conduct, it fails to support a conviction

because the record is devoid of evidence that Albrektson’s head ever was “going up or down.”

The detectives testified only that, upon approaching the vehicle, they saw her head in Flanagan’s

lap. Moreover, the fact that a person could have seen apparent sexual activity does not mean such

an observation was likely.

       {¶ 18} As for Detective Dedrick, he did not even notice Albrektson until she “popped

up” when he was approximately twenty feet from Flanagan’s car. His testimony could not

possibly support a finding that anyone in the south parking lots or on Heid Street likely would

have seen Flanagan, at dusk, engaged in conduct that appeared to be sexual. Similarly, Detective

Barnes mentioned first seeing Albrektson “face down towards Mr. Flanagan’s lap” as he and

Dedrick approached Flanagan’s car. (Id. at 156). Therefore, his testimony does not support a

finding that anyone in the south parking lots or on Heid Street likely would have seen Flanagan

engaged in apparent sexual conduct.

       {¶ 19} In short, even if the evidence supports a finding that apparent sexual conduct

between Flanagan and Albrektson could or might have been visible, the State’s evidence is

insufficient to support a finding that Flanagan’s conduct was likely to be viewed by others.3


         3
             We recognize, of course, that the detectives did view sexual conduct between Flanagan and Albrektson. In order to do so,
                                                                                                                                               8


         {¶ 20} Finally, assuming arguendo that Flanagan’s conduct was likely to be viewed by

others, the State’s evidence is insufficient to establish that he acted recklessly with regard to that

fact. The Revised Code provides that “[a] person is reckless with respect to circumstances, when,

with heedless indifference to the consequences, he perversely disregards a known risk that such

circumstances are likely to exist.” R.C. 2901.22(C). Here Flanagan drove his companion to a

relatively isolated, industrial area at dusk and received oral sex in a closed car where he could

look south and monitor the only direction from which he reasonably might have been observed.

These facts simply do not support a finding that Flanagan acted with heedless indifference or

perversely disregarded a known risk that he was likely to be observed engaged in apparent sexual

activity. Whatever else might be said about Flanagan’s conduct, he did not engage in an act of

public indecency within the meaning of R.C. 2907.09(A)(3).

         {¶ 21} The State’s reliance on State v. Bellomy, 2d Dist. Montgomery No. 21452,

2006-Ohio-7087, and Columbus v. Abdalla, 10th Dist. Franklin No. 97APC08-973, 1998 WL

211929 (April 30, 1998), fails to persuade us otherwise. In Bellomy, the defendant was convicted

of violating R.C. 2907.09(A)(3) for engaging in sexual activity while in a car “traveling down a

public street in view of pedestrians or passing motorists” and after the car had stopped in a

residential neighborhood. Bellomy at ¶ 33. In a two-to-one decision, this court upheld a finding

that the defendant’s conduct was likely to be viewed by others. Other than the fact that both cases

involved sex acts in a car, the facts of Bellomy bear no similarity to Flanagan’s case. Flanagan did

not engage in sexual activity amidst others on a public street or in a residential neighborhood. He



 however, they carefully concealed their presence and then coordinated a rush toward Flanagan’s vehicle. Absent these extraordinary efforts,
 we do not believe Flanagan’s activity was likely to be viewed by the detectives.
                                                                                                   9


went to a relatively isolated, industrial area at dusk where no one was likely to see him.

        {¶ 22} The State’s reliance on Abdalla is equally unpersuasive. In Abdalla, the

defendant was convicted of violating a public-indecency ordinance for (1) standing next to an

undercover officer in the parking lot of a public park and masturbating through his jeans and then

(2) proceeding to masturbate through his jeans in his own car while still in the officer’s presence.

Abdalla at *1-2. Once again, other than the fact that some of the defendant’s sexual activity in

Abdalla occurred inside a car, we see no similarity between the facts of that case and Flanagan’s

case.

        {¶ 23} Based on the reasoning set forth above, we hold that the State presented legally

insufficient evidence to convict Flanagan under R.C. 2907.09(A)(3). His first assignment of error

is sustained. The second assignment of error, which raises a manifest-weight-of-the-evidence

issue, is overruled as moot.

        {¶ 24} The trial court’s judgment is reversed, and Flanagan’s conviction is vacated.

                                          .............

DONOVAN and WELBAUM, JJ., concur.


Copies mailed to:

John J. Danish / Stephanie L. Cook
Matthew Kortjohn
Robert Alan Brenner
Hon. Daniel G. Gehres

Case Name:     State of Ohio v. Eric C. Flanagan
Case No:               Montgomery App. No. 25520
Panel:                 Donovan, Hall, Welbaum
Author:                Michael T. Hall
Summary:
