[Cite as State v. Sparks, 2019-Ohio-3145.]




                                     IN THE COURT OF APPEALS

                            TWELFTH APPELLATE DISTRICT OF OHIO

                                             BUTLER COUNTY




 STATE OF OHIO,                                    :

        Appellee,                                  :         CASE NO. CA2018-11-226

                                                   :              OPINION
     - vs -                                                        8/5/2019
                                                   :

 AGYEMANG SPARKS,                                  :

        Appellant.                                 :




               CRIMINAL APPEAL FROM BUTLER COUNTY AREA III COURT
                               Case No. CRB1800332


Michael T. Gmoser, Butler County Prosecuting Attorney, Michael Greer, Government
Services Center, 315 High Street, 11th Floor, Hamilton, Ohio 45011, for appellee

Scott N. Blauvelt, 315 South Monument, Hamilton, Ohio 45011, for appellant



        S. POWELL, P.J.

        {¶ 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 of

resentencing.
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        {¶ 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 review.1

        {¶ 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, ¶




1. We note that the trial court granted Sparks' motion to stay his 30-day jail sentence pending appeal.
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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 (1st Dist.1991), citing 4 Ohio Jury Instructions

(1991), Section 507.09. This would include Sparks' penis.

       {¶ 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

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also claims B.C.'s testimony lacks credibility when considering B.C. has not ruled out

bringing legal action against her now former employer.2 Therefore, because he denied ever

exposing his penis to B.C., Sparks argues it was improper for the trial court to find him

guilty.

          {¶ 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 this court will not substitute its evaluation of B.C.'s

credibility for that of the trial court. State v. Kellum, 12th Dist. Clinton No. CA97-11-012,

1998 Ohio App. LEXIS 2779, *13-14 (June 22, 1998).

          {¶ 11} It is equally well-established that a conviction is not against the manifest

weight of the evidence simply because the trier of fact believed the testimony offered by the

prosecution. State v. Crossty, 12th Dist. Clermont Nos. CA2017-01-003 thru CA2017-01-

005, 2017-Ohio-8267, ¶ 68. "As the trier of fact is in the best position to judge the credibility

of the witnesses, we will not disturb the trial court's finding in regard to which version of

events was credible, and which was not." State v. Bonner, 12th Dist. Butler No. CA2012-

09-195, 2013-Ohio-3670, ¶ 13. Therefore, because this is not one of those extraordinary



2. B.C. testified she no longer works for the company where she was employed when Sparks exposed his
penis to her because she "wasn't happy with the company after all of this went on." Sparks testified he also
no longer works for that company after "[he] got [himself] fired" because he could no longer complete his job
responsibilities due to pressure put on him by B.C.'s "operatives," her friends, and her supervisor.
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circumstances where the evidence presented at trial weighed heavily in favor of acquittal,

Sparks' conviction was not against the manifest weight of the evidence. See, e.g., State v.

Osborne, 5th Dist. Muskingum No. CA 92-4, 1992 Ohio App. LEXIS 6181, *6-7 (Dec. 4,

1992) (conviction for public indecency was not against the manifest weight of the evidence

where "the jury could reasonably conclude that appellant was aware that his penis was out

of his pants when he lifted his shirt, and it was not an accident"). Accordingly, finding no

error in the trial court's decision, Sparks' first assignment of error lacks merit and is

overruled.

       {¶ 12} Assignment of Error No. 2:

       {¶ 13} THE TRIAL COURT ERRED TO THE PREJUDICE OF APPELLANT WHERE

THE RECORD DOES NOT DEMONSTRATE THAT APPELLANT WAS GIVEN AN

OPPORTUNITY FOR ALLOCUTION AT SENTENCING.

       {¶ 14} In his second assignment of error, Sparks argues the trial court erred by

denying him his right to allocution prior to issuing its sentencing decision. The state

concedes, and we agree, that the trial court did not address Sparks personally and ask if

he wished to make a statement on his behalf or present any information in mitigation of

punishment prior to sentencing as required by Crim.R. 32(A)(1). Although not considered

a constitutional right, "the right of allocution is firmly rooted in the common-law tradition."

State v. Copeland, 12th Dist. Butler No. CA2007-02-039, 2007-Ohio-6168, ¶ 6. This right

is "both absolute and not subject to waiver due to a defendant's failure to object." State v.

Haynes, 12th Dist. Butler No. CA2010-10-273, 2011-Ohio-5743, ¶ 27. Therefore, because

the trial court erred by denying Sparks his right to allocution prior to issuing its sentencing

decision, Sparks' second assignment of error is sustained and this matter is reversed and

remanded to the trial court for the limited purpose of resentencing.

       {¶ 15} Judgment reversed as to sentencing only and remanded to the trial court for

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the limited purpose of resentencing. Upon remand, the trial court is instructed to personally

address Sparks and ask him if he wishes to make a statement on his own behalf or present

any information in mitigation of punishment before imposing a sentence. In all other

respects, the trial court's judgment is affirmed.


       PIPER and M. POWELL, JJ., concur.




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