[Cite as State v. Latimore, 2016-Ohio-2989.]



                                     IN THE COURT OF APPEALS

                            TWELFTH APPELLATE DISTRICT OF OHIO

                                               BUTLER COUNTY




STATE OF OHIO,                                       :

        Plaintiff-Appellee,                          :     CASE NO. CA2015-09-175

                                                     :          OPINION
    - vs -                                                       5/16/2016
                                                     :

MICHAEL A. LATIMORE,                                 :

        Defendant-Appellant.                         :



               CRIMINAL APPEAL FROM MIDDLETOWN MUNICIPAL COURT
                              Case No. 14 CRB 04879



Ashley Bretland, Middletown City Prosecutor, One Donham Plaza, Middletown, Ohio 45042,
for plaintiff-appellee

David Chicarelli, 614 East Second Street, Franklin, Ohio 45005, for defendant-appellant



        RINGLAND, J.

        {¶ 1} Defendant-appellant, Michael A. Latimore, appeals his conviction in the

Middletown Municipal Court for voyeurism. We affirm appellant's conviction.

        {¶ 2} Appellant is the boyfriend of the mother of S.W., a 13-year-old girl. In August

2014, S.W. had been playing outside with her siblings, when appellant called her inside to

take a shower. Once S.W. was in the bathroom to shower and had removed her clothes, she

reached for a razor and noticed appellant's smartphone leaning against a basket, pointing
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towards her, and recording. She retrieved the phone, confirmed it was recording her,

stopped and deleted the recording, put her clothes back on, and confronted appellant.

Appellant merely yelled at her and told her never to touch his phone again.

       {¶ 3} S.W. related the incident to her father, who in turn, filed a complaint with the

Middletown Police Department. Police went to appellant's home to speak with him about the

incident. At first, appellant provided the police with a false first name (i.e., his brother's), but

shortly thereafter, gave them his actual first name. Appellant was taken to the Middletown

Police Department where he submitted to a polygraph which indicated deception in his

responses to questions regarding recording S.W. in the bathroom. The police also observed

that appellant attempted to manipulate the results of the polygraph through breathing

techniques. Appellant was also interviewed by police after he received his Miranda warnings.

At first, appellant denied using his smartphone to videotape S.W. in the bathroom, telling

police at one point that he did not videotape S.W. in the bathroom because he knew she

would be naked in the bathroom. However, he eventually admitted to police he used his

smartphone to record S.W. in the bathroom, but insisted he did so merely to see if she was

stealing money and various items from the household.

       {¶ 4} Appellant was charged with voyeurism in violation of Middletown Codified

Ordinance ("M.C.O.") 666.05(d), a first-degree misdemeanor, and obstructing official

business in violation of M.C.O. 606.14(A), a second-degree misdemeanor. A trial was held in

Middletown Municipal Court. At the conclusion of the state's case, the trial court granted

appellant's motion for acquittal of the obstructing-official-business charge, but overruled his

motion for acquittal of the voyeurism charge. At the close of evidence, the trial court found

appellant guilty of voyeurism in violation of M.C.O. 666.05(d). The trial court sentenced

appellant to 90 days in jail and fined him $250 in court costs, with the jail sentence

suspended on the condition that appellant not reoffend and that he not have any contact with

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S.W. The trial court also ordered appellant to register as a Tier I sex offender for 15 years.

       {¶ 5} Appellant now appeals and assigns the following as error:

       {¶ 6} THE TRIAL COURT ERRED IN FINDING DEFENDANT GUILTY OF

VOYEURISM.

       {¶ 7} Appellant argues his conviction of voyeurism pursuant to M.C.O. 666.05(d) is

not supported by sufficient evidence. He also argues, essentially (though not explicitly), that

his conviction is against the manifest weight of the evidence.

       {¶ 8} When reviewing the sufficiency of the evidence supporting a criminal conviction,

an appellate court examines the entire record to determine whether the evidence, if believed,

would convince the average mind of the defendant's guilt. State v. Kinsworthy, 12th Dist.

Warren No. CA2013-06-053, 2014-Ohio-1584, ¶ 52. 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, paragraph two of the syllabus.

       {¶ 9} In determining whether a conviction is against the manifest weight of the

evidence, an appellate court examines the entire record, weighs the evidence and all

reasonable inferences, considers the credibility of the witnesses, and determines whether, in

resolving 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. Santiago, 12th Dist. Butler No. CA2015-03-046, 2016-Ohio-547, ¶ 9. However, the

appellate court must be mindful that the weight to be given the evidence and the credibility of

the witnesses are primarily matters for the trier-of-fact. State v. Thomas, 70 Ohio St.2d 79

(1982), syllabus. An appellate court will overturn a conviction on grounds that it is against the

manifest weight of the evidence only in extraordinary circumstances where the evidence

presented at trial weighs heavily in favor of acquittal. Id. at ¶ 10.

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        {¶ 10} M.C.O. 666.05(d) provides that "[n]o person shall secretly or surreptitiously

videotape, film, photograph, or otherwise record another person under or through the clothing

being worn by that person for the purpose of viewing the body of, or the undergarments worn

by, that other person." This ordinance closely tracks R.C. 2907.08(D), which provides that

"[n]o 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." (Emphasis

added.)1

        {¶ 11} "Surreptitious" is commonly defined as meaning "unauthorized and clandestine;

done by stealth and without legitimate authority." Black's Law Dictionary (10th Ed.2014)

(Westlaw on-line); Black's Law Dictionary (8th Ed.2004) 1485.

        {¶ 12} M.C.O. 606.02(a) states that "[a] person acts purposely when it is the person's

specific intention to cause a certain result, or, when the gist of the offense is a prohibition

against conduct of a certain nature, regardless of what the offender intends to accomplish

thereby, it is the offender's specific intention to engage in conduct of that nature."

        {¶ 13} Appellant argues the state failed to present sufficient evidence to establish two

of the elements of a charge under subsection (d) of M.C.O. 666.05, namely, that (1) he

"secretly or surreptitiously" videotaped or otherwise recorded another person, and (2) he

made the recording for the "purpose" of viewing the other person's body or undergarments.

Appellant contends the state failed to establish the "secretly or surreptitiously" element, since

the smartphone in the bathroom was in plain view and S.W. immediately noticed it. Appellant

also contends the state failed to establish the "purpose" element, since the evidence shows

he recorded S.W. merely for the purpose of detecting whether she was stealing items from


1. The only difference between these two provisions is that R.C. 2907.08(D) contains the additional word "other"
that we have italicized above. We view the difference as nonsubstantive and merely stylistic, and appellant has
not argued or suggested otherwise.

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the household. Neither of appellant's arguments has merit.

       {¶ 14} The evidence showed that appellant deliberately set his smartphone on

"record" mode and placed it leaning against a basket on a shelf that was behind the toilet.

Appellant knew that S.W. was outside, playing with her siblings, and he ordered S.W. to

come inside and shower. S.W. went inside, appellant got S.W. her pajamas, and S.W. went

in the bathroom where she undressed and then turned on the water. When S.W. went to

retrieve a razor that was kept in the basket on the shelf, she noticed appellant's smartphone,

which was leaning up against the basket, with the phone's camera facing towards her and

recording.   S.W. deleted the recording, got dressed, and confronted appellant, who

responded by screaming at her and ordering her not to touch his phone ever again.

       {¶ 15} Appellant argues the smartphone in the bathroom was "propped up in plain

view" and that S.W. noticed the phone "almost immediately[,]" and thus, "was obvious," and

"not secretive" or surreptitious. Indeed, S.W. acknowledged during her testimony that it was

"fairly common" for the smartphone to be in the bathroom. However, S.W. testified that she

did not notice the smartphone that was recording her, until she had undressed, turned on the

water, and reached for a razor that was kept in the same basket that the smartphone was

leaning against. S.W. also testified that she was aware that appellant and her mother had

been videotaping her to determine if she had been stealing from them. However, appellant

never told S.W. that he was recording her in the bathroom. Under the facts of this case, the

state presented sufficient evidence to establish the "secretly and surreptitiously" element of

M.C.O. 666.05(d), which is analogous to R.C. 2907.08(D), and the trier-of-fact's

determination that the element was proved was not contrary to the manifest weight of the

evidence.

       {¶ 16} The element of "purpose" was also met. Even though appellant testified he

made the recording for the purpose of detecting whether S.W. was stealing things from the

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household, including money and items such as her sister's lingerie, and not for the purpose

of viewing S.W.'s body or undergarments, he made the videotape recording of S.W. in the

family's bathroom. As the state points out, the bathroom is "the most probable of all rooms

for a person to be in a state of undress[.]"

       {¶ 17} Additionally, appellant admitted he was seeking to observe S.W. in a state of

undress to see if she possessed items which had been stolen. However, the language in

M.C.O. 666.05(d) and R.C. 2907.08(D) does not focus upon the ultimate reason why a

person may seek to view another person's body or undergarments. It is only the immediate

purpose of seeing that other person's body or undergarments that is relevant.

       {¶ 18} It was primarily for the trier of fact to weigh the evidence on the question of

what appellant's actual purpose was in videotaping or otherwise recording the victim under or

through the clothing being worn by her. It cannot be said on this record that the trier of fact

lost his way or created such a manifest miscarriage of justice that appellant's conviction has

to be overturned and a new trial ordered. In light of the foregoing, appellant's assignment of

error is overruled.

       {¶ 19} Judgment affirmed.


       M. POWELL, P.J., and HENDRICKSON, J., concur.




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