[Cite as State v. Hopper, 2016-Ohio-5760.]


                                       COURT OF APPEALS
                                     LICKING COUNTY, OHIO
                                   FIFTH APPELLATE DISTRICT



STATE OF OHIO                                :      JUDGES:
                                             :      Hon. Sheila G. Farmer, P.J.
        Plaintiff-Appellee                   :      Hon. W. Scott Gwin, J.
                                             :      Hon. Craig R. Baldwin, J.
-vs-                                         :
                                             :      Case Nos. 15-CA-92, 15-CA-93,
ANTHONY HOPPER                               :                15-CA-94, 15-CA-95,
                                             :                15-CA-96
        Defendant-Appellant                  :
                                             :      OPINION



CHARACTER OF PROCEEDING:                            Appeal from the Municipal Court,
                                                    Case Nos. 15CRB00992,
                                                    15CRB00993, 15CRB00994,
                                                    15CRB01579, 15CRB01618


JUDGMENT:                                           Affirmed




DATE OF JUDGMENT:                                   September 6, 2016




APPEARANCES:

For Plaintiff-Appellee                              For Defendant-Appellant

TRICIA M. MOORE                                     ANDREW T. SANDERSON
40 West Main Street                                 73 North Sixth Street
Newark, OH 43055                                    Newark, OH 43055
Licking County, Case Nos. 15-CA-92, 15-CA-93, 15-CA-94, 15-CA-95, 15-CA-96               2

Farmer, P.J.

      {¶1}     Appellant, Anthony Hopper, was charged in five separate cases on the

same offense, voyeurism in violation of R.C. 2907.08(D). Said charges arose from

appellant taking pictures under the dresses of five different women.

      {¶2}     A bench trial commenced on November 4, 2015. On the morning of trial,

appellant filed a motion to dismiss the charges, claiming the statute was overbroad and

therefore unconstitutional.   The trial court found the motion was untimely filed and

denied the motion. The bench trial proceeded and the trial court found appellant guilty

as charged in three of the cases and guilty of attempting to commit voyeurism in the

remaining two cases. By judgments of conviction filed November 4, 2015, the trial court

sentenced appellant to a total aggregate term of eighteen months in jail.

      {¶3}     Appellant filed an appeal and this matter is before this court for

consideration. Assignments of error are as follows:

                                             I

      {¶4}     "THE TRIAL COURT COMMITTED HARMFUL ERROR IN SUMMARILY

DENYING THE DEFENDANT-APPELLANT'S MOTION TO DISMISS."

                                             II

      {¶5}     "THE DEFENDANT-APPELLANT WAS DENIED THE EFFECTIVE

ASSISTANCE OF TRIAL COUNSEL."

                                             I

      {¶6}     Appellant claims the trial court erred in denying his request to file a late

motion to dismiss the charges on constitutional grounds. We disagree.
Licking County, Case Nos. 15-CA-92, 15-CA-93, 15-CA-94, 15-CA-95, 15-CA-96               3


       {¶7}   Whether to grant leave to file an untimely pretrial motion rests in a trial

court's sound discretion. Akron v. Milewski, 21 Ohio App.3d 140 (9th Dist.1985). In

order to find an abuse of discretion, we must determine the trial court's decision was

unreasonable, arbitrary or unconscionable and not merely an error of law or judgment.

Blakemore v. Blakemore, 5 Ohio St.3d 217 (1983).

       {¶8}   Crim.R. 12 governs pleadings and motions before trial. Subsections (A),

(C)(2), and (D) state the following:



              (A) Pleadings and Motions. Pleadings in criminal proceedings

       shall be the complaint, and the indictment or information, and the pleas of

       not guilty, not guilty by reason of insanity, guilty, and no contest. All other

       pleas, demurrers, and motions to quash, are abolished. Defenses and

       objections raised before trial which heretofore could have been raised by

       one or more of them shall be raised only by motion to dismiss or to grant

       appropriate relief, as provided in these rules.

              (C) Pretrial Motions. Prior to trial, any party may raise by motion

       any defense, objection, evidentiary issue, or request that is capable of

       determination without the trial of the general issue. The following must be

       raised before trial:

              (2) Defenses and objections based on defects in the indictment,

       information, or complaint (other than failure to show jurisdiction in the

       court or to charge an offense, which objections shall be noticed by the

       court at any time during the pendency of the proceeding);
Licking County, Case Nos. 15-CA-92, 15-CA-93, 15-CA-94, 15-CA-95, 15-CA-96              4


              (D) Motion Date. All pretrial motions except as provided in Crim. R.

       7(E) and 16(M) shall be made within thirty-five days after arraignment or

       seven days before trial, whichever is earlier. The court in the interest of

       justice may extend the time for making pretrial motions.



       {¶9}   Appellant does not dispute his motion to dismiss was untimely, but argues

the trial court abused its discretion in not permitting the motion to be heard "in the

interest of justice."    Appellant argues he presented a valid constitutional challenge,

claiming the language of R.C. 2907.08(D) to be overbroad.

       {¶10} In refusing to entertain the untimely motion, the trial court stated the

following (T. at 8-9):



              So The Court does find that the motion itself to dismiss is untimely,

         under Criminal Rule 12D. That leaves The Court with the discretion to

         allow the motion to be filed, only in the interest of justice. The Court

         finds, without passing on the merits of the motion to dismiss on

         constitutional grounds, that the interest of justice do not require The

         Court to entertain the motion at this time, or to allow it to be filed in an

         untimely manner for the following reasons: number one, it's my

         understanding that if the motion to file in an untimely manner is denied,

         Mr. Dalsanto, that you intend to proffer the motion to dismiss, and

         therefore, preserve the issue for appeal if the defendant were to be

         convicted of any of these charges.
Licking County, Case Nos. 15-CA-92, 15-CA-93, 15-CA-94, 15-CA-95, 15-CA-96          5


            ***

            And because of the nature, because one of the basis for arguing

       the ineffective assistance of counsel claim is to show that but for

       counsel's deficiencies, the outcome of the proceedings would have been

       different. The only way these could have possibly been different, at least

       from a pretrial review of the facts and procedural stance of the case, is

       that if the defendant's motion to dismiss had been granted. Because it

       only goes up on appeal if, in fact, he's convicted. And as of - - as we

       speak, he's presumed to be innocent.

            So, if there's a conviction, if this thing goes up on an ineffective

       claim, which it presumably would, the merits of the case would be

       determined by The Court Of Appeals and therefore, the defendant is not

       going to be prejudiced without having that certain decision or

       determination ever made. In the interest of justice are not only applied

       to the defendant's particular circumstances, but also to all parties and

       persons involved in the case. And The Court is swayed by the fact that

       we have five different cases set. That the issue of the constitutional

       challenge was discussed well in advance of today's date and the motion

       simply wasn't filed. And furthermore, that the inconvenience to all the

       witnesses would be very great and the state could be put - - be

       prejudiced to the extent that these same witnesses may not be willing or

       able to attend future hearings if they were to be delayed at such a late

       juncture in these proceedings.
Licking County, Case Nos. 15-CA-92, 15-CA-93, 15-CA-94, 15-CA-95, 15-CA-96                  6




       {¶11} Upon review, we find the trial court did not abuse its discretion in refusing

to entertain the motion made on the day of trial.

       {¶12} Assignment of Error I is denied.

                                              II

       {¶13} Appellant claims his trial counsel was ineffective for failing to timely file the

motion to dismiss the charges on constitutional grounds. We disagree.

       {¶14} The standard this issue must be measured against is set out in State v.

Bradley, 42 Ohio St.3d 136 (1989), paragraphs two and three of the syllabus. Appellant

must establish the following:



              2. Counsel's performance will not be deemed ineffective unless and

       until counsel's performance is proved to have fallen below an objective

       standard of reasonable representation and, in addition, prejudice arises

       from counsel's performance. (State v. Lytle [1976], 48 Ohio St.2d 391, 2

       O.O.3d 495, 358 N.E.2d 623; Strickland v. Washington [1984], 466 U.S.

       668, 104 S.Ct. 2052, 80 L.Ed.2d 674, followed.)

              3. To show that a defendant has been prejudiced by counsel's

       deficient performance, the defendant must prove that there exists a

       reasonable probability that, were it not for counsel's errors, the result of

       the trial would have been different.
Licking County, Case Nos. 15-CA-92, 15-CA-93, 15-CA-94, 15-CA-95, 15-CA-96             7


      {¶15} Assuming defense counsel was deficient in failing to timely file the motion

to dismiss, we will proceed to analyze the issue under the second prong, a showing of

prejudice.

      {¶16} Defense counsel proffered the motion to dismiss in the record and fully

briefed the arguments in a motion to dismiss. T. at 10. Appellant's position is that R.C.

2907.08(D) is constitutionality overbroad because it criminalizes constitutionally

protected conduct.

      {¶17} In Akron v. Rowland, 67 Ohio St.3d 374, 386-387, 1993-Ohio-222, the

Supreme Court of Ohio explained the following:



             The purpose of the overbreadth doctrine is to provide the "breathing

      space" that "First Amendment freedoms need***to survive[.]" Natl. Assn.

      for the Advancement of Colored People v. Button (1963), 371 U.S. 415,

      433, 83 S.Ct. 328, 338, 9 L.Ed.2d 405, 418.        In Grayned, supra, the

      Supreme Court gave the general definition of "overbreadth": "A clear and

      precise enactment may***be 'overbroad' if in its reach it prohibits

      constitutionally protected conduct." Id., 408 U.S. at 114, 92 S.Ct. at 2302,

      33 L.Ed.2d at 231. In considering an overbreadth challenge, the court

      must decide "whether the ordinance sweeps within its prohibitions what

      may not be punished under the First and Fourteenth Amendments." Id.,

      408 U.S. at 115, 92 S.Ct. at 2302, 33 L.Ed.2d at 231.

             "Only a statute that is substantially overbroad may be invalidated

      on its face." Houston v. Hill (1987), 482 U.S. 451, 458, 107 S.Ct. 2502,
Licking County, Case Nos. 15-CA-92, 15-CA-93, 15-CA-94, 15-CA-95, 15-CA-96                    8


       2508, 96 L.Ed.2d 398, 410. In order to demonstrate facial overbreadth,

       the party challenging the enactment must show that its potential

       application   reaches     a   significant   amount     of   protected    activity.

       Nevertheless, criminal statutes "that make unlawful a substantial amount

       of constitutionally protected conduct may be held facially invalid even if

       they also have legitimate application." Id. at 459, 107 S.Ct. at 2508, 96

       L.Ed.2d at 410. A statute is substantially overbroad if it is "susceptible of

       regular application to protected expression." Id. at 467, 107 S.Ct. at 2512,

       96 L.Ed.2d at 415.



       {¶18} Appellant was charged with violating R.C. 2907.08(D) which states: "No

person shall secretly or surreptitiously videotape, film, photograph, or otherwise record

another person under or through the clothing being worn by that other person for the

purpose of viewing the body of, or the undergarments worn by, that other person."

       {¶19} Appellant argues this subsection does not include "for the purpose of

sexually arousing or gratifying the person's self" or "invade the privacy of another"

elements as does subsections (A), (B), and (C). In support of his argument, appellant

presented in his motion to dismiss some nine scenarios he claimed would violate the

statute, but constitute protected activity. In the various scenarios, what is missing from

appellant's argument is the fact that each person photographed or videotaped is warned

of the filming or taping or consented to it or wears see-through clothing in public. The

statute specifically identifies the criminal activity as "secretly or surreptitiously videotape,

film, photograph, or otherwise record."
Licking County, Case Nos. 15-CA-92, 15-CA-93, 15-CA-94, 15-CA-95, 15-CA-96            9

      {¶20} As explained by the Supreme Court of Ohio in Mahoning Education

Association of Developmental Disabilities v. State Employment Relations Board, 137

Ohio St.3d 257, 2013-Ohio-4654, ¶ 13:



             A statute is presumed constitutional. "In enacting a statute, it is

      presumed that***[c]ompliance with the constitutions of the state and of the

      United States is intended." R.C. 1.47(A). See also State v. Carswell, 114

      Ohio St.3d 210, 2007-Ohio-3723, 871 N.E.2d 547, ¶ 6. Courts have a

      duty to liberally construe statutes "to save them from constitutional

      infirmities." Desenco, Inc. v. Akron, 84 Ohio St.3d 535, 538, 706 N.E.2d

      323 (1999). As we have historically held, "An enactment of the General

      Assembly is presumed to be constitutional, and before a court may

      declare it unconstitutional it must appear beyond a reasonable doubt that

      the legislation and constitutional provisions are clearly incompatible."

      State ex rel. Dickman v. Defenbacher, 164 Ohio St. 142, 128 N.E.2d 59

      (1955), paragraph one of the syllabus.



      {¶21} The elements of R.C. 2907.08(D) include an activity conducted "secretly

or surreptitiously" thereby implying without consent, "under or through the clothing" of

another, "for the purpose of viewing the body of, or undergarments worn by, that other

person."
Licking County, Case Nos. 15-CA-92, 15-CA-93, 15-CA-94, 15-CA-95, 15-CA-96            10


       {¶22} We find appellant has not provided evidence to establish the statute is

substantially overbroad, "susceptible of regular application to protected expression."

Akron, supra, at 387, quoting Houston v. Hill, 482 U.S. 451, 467 (1987).

       {¶23} Upon review, we do not find there exists a reasonable probability that,

were it not for counsel's errors, the result of the trial would have been different

       {¶24} Assignment of Error II is denied.

       {¶25} The judgment of the Municipal Court of Licking County, Ohio is hereby

affirmed.

By Farmer, P.J.

Gwin, J. and

Baldwin, J. concur.




SGF/sg 8/19
