[Cite as State v. Zimmerer, 2020-Ohio-3921.]




                                     IN THE COURT OF APPEALS

                           TWELFTH APPELLATE DISTRICT OF OHIO

                                               BUTLER COUNTY




 STATE OF OHIO,                                      :

        Appellee,                                    :         CASE NO. CA2019-10-176

                                                     :              OPINION
     - vs -                                                          8/3/2020
                                                     :

 LAWRENCE J. ZIMMERER,                               :

        Appellant.                                   :




               CRIMINAL APPEAL FROM BUTLER COUNTY AREA III COURT
                              Case No. CRB 1801483


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

Scott N. Blauvelt, 246 High Street, Hamilton, Ohio 45011, for appellant



        S. POWELL, J.

        {¶ 1} Appellant, Lawrence J. Zimmerer, appeals his conviction in the Butler County

Area III Court after the trial court found found him guilty of voyeurism following a bench trial.

For the reasons outlined below, we affirm.

                                    Facts and Procedural History

        {¶ 2} On September 24, 2018, a detective with the West Chester Police Department
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filed a complaint charging Zimmerer with voyeurism in violation of R.C. 2907.08(D), a first-

degree misdemeanor. As alleged in the complaint, the charge arose after Zimmerer used

his cellphone camera to "take pictures and or video" of the victim, A.T., without her consent

"while she bent over wearing a dress" on the afternoon of September 4, 2018. The matter

ultimately proceeded to a bench trial held on July 20, 2019. At trial, the court heard

testimony from five witnesses including A.T., Zimmerer, as well as T.T., a woman whom

Zimmerer had photographed using his cellphone camera under similar circumstances

approximately three weeks prior to the incident involving A.T.

                                     The Trial Testimony

       {¶ 3} A.T. testified that she and her husband, D.T., had requested a local HVAC

company to send a service technician to their home to repair their broken air conditioner.

There is no dispute that Zimmerer was the service technician who was dispatched to A.T.

and D.T.'s home for that service call. Upon Zimmerer's arrival, A.T. showed Zimmerer

where the inside air conditioner unit was located. After looking at the inside unit, Zimmerer

asked A.T. if she could show him where the outside air conditioner unit was located. A.T.

agreed. Once there, Zimmerer took the cover off the outside unit and discovered a dead

mouse, a nest, and other debris inside. Believing this to be the problem with the air

conditioner, A.T. testified that Zimmerer asked her to get a plastic bag and gloves "to

remove [the mouse] so that [her] dogs couldn't get it." Although thinking that this was an

odd request, A.T. nevertheless went inside and got the plastic bag and gloves as Zimmerer

had asked.

       {¶ 4} A.T. testified that she then came back outside and Zimmerer "actually had

[her] get the mouse out" of the air conditioner and put it in the plastic bag. A.T. testified that

this "felt weird," but that she "didn't question it." A.T. testified that Zimmerer then told her

that he was going to clean out the rest of the unit, but asked that she "stay and hold the bag

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because he didn't want [her] dogs to get the remnants of what was left from this mouse[.]"

Always willing to help, A.T. testified that she agreed to hold the bag open for Zimmerer while

he cleaned out the remaining debris from the unit. According to A.T., this required her to

almost squat, but "not down to the ground, just a small reach-over," while Zimmerer used a

brush to sweep out the debris.

       {¶ 5} Explaining what happened next, A.T. testified:

              I was holding the bag, and he was using the brush with his left
              hand, and he was brushing it. At one point in time, he had
              paused to the point where I looked back at him like – to see what
              he was doing. At that time, it was an awkwardly long pause,
              and when I looked at him, he was looking behind me. So I went
              like this, looked over my shoulder, and when I did, I could see
              his phone. I could see myself in his phone.

       {¶ 6} When asked specifically what she saw on Zimmerer's phone, A.T. testified:

              I could see the dress [that I was wearing] and my legs. And
              then, and as I moved, I could see myself, like my – not a clear
              vision of my face, but specifically I could see myself, see my
              face, and my legs, and the dress and then my face in it.

       {¶ 7} Describing further what she saw on Zimmerer's phone, A.T. testified:

              It was in the camera mode because I could see myself, my legs
              and my dress in the camera. And then his arm was completely
              outreached behind my body. * * * So his phone – his arm was
              completely outstretched behind my body when the unit was in
              front of my body.

       {¶ 8} A.T. also testified that she "saw the edge of [her] dress" on Zimmerer's phone,

as well as "the back of [her] thigh, which would have been covered by [her] dress."

       {¶ 9} After a brief struggle over Zimmerer's phone, A.T. testified that she looked up

and will "never forget the look in [Zimmerer's] eyes." A.T. testified that Zimmerer then

backed away from her and "started on the phone." Now scared and not sure of what

Zimmerer was "capable of," A.T. testified that she yelled for her husband, D.T., and said to

Zimmerer, "you're looking up my dress." To this, A.T. testified that Zimmerer "just kept

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saying no, no, no. And then was on his phone." A.T. testified that she then screamed at

Zimmerer that he needed to leave. A.T. testified that her husband then came out of the

house and started down the stairs while Zimmerer "kept yelling, 'I'm sorry, I'm sorry * * *.'"

A.T. testified that Zimmerer then put his phone away, collected his tools, and left.

       {¶ 10} Similar to A.T.'s testimony, D.T. testified that Zimmerer had come to the house

for a service call to repair their broken air conditioner. During this service call, D.T. testified

that he came outside and saw Zimmerer "standing there next to the air conditioning unit

holding his phone" just "hammering away at the screen." Not sure what he was getting

himself into, D.T. testified that he approached Zimmerer as he was "repeatedly telling [A.T.],

ma'am, I'm sorry, I'm sorry, I'm sorry." D.T. testified that Zimmerer was also "pressing his

thumbs and he's handling the phone, the screen of the phone, saying, I'm sorry, I'm sorry."

       {¶ 11} Explaining what happened next, D.T. testified:

              And he just kept saying, I'm sorry, I'm sorry, I'm sorry, ma'am,
              I'm sorry, just like over and over and over. And I'm like, I just
              thought, you know, just both him and my wife were so upset,
              and I thought maybe he just damaged my air conditioner or
              something. * * * But when I got him out of there and turned to
              her, she's in tears and shaking, and I knew something bad
              happened.

       {¶ 12} D.T. testified that Zimmerer then left and A.T. told him that Zimmerer "was

looking up [her] dress." D.T. testified that he then called 9-1-1.

       {¶ 13} Officer Steven Seitzman, then employed with the West Chester Police

Department, was dispatched to A.T. and D.T.'s house on a report of an alleged voyeurism.

Upon his arrival, Officer Seitzman testified that A.T. was visibly upset. Officer Seitzman

also testified that "[y]ou could tell [A.T.] had been crying; she experienced something

traumatic." Officer Seitzman testified that he then spoke with A.T. and, based on their

conversation, he "generated a report of voyeurism."

       {¶ 14} After speaking with A.T., Officer Seitzman testified that he then met with

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Zimmerer. During their conversation, Officer Seitzman testified that Zimmerer told him the

following:

              He said that he takes pictures of the serial numbers on these
              [air conditioner] units. I asked him how he typically takes those
              photographs since the camera is on the back of the phone. And
              I asked him why the forward-facing camera was on at [A.T. and
              D.T.'s house], and he said it must have been an accident.

       {¶ 15} Officer Seitzman testified that Zimmerer then gave him consent to search his

phone. There is no dispute that Officer Seitzman did not come across any photographs or

video recordings related to the incident involving A.T. during that search. Officer Seitzman,

however, did discover a photograph that "appeared to be a female," later identified as T.T.,

"walking up the basement stairs." Further investigation revealed this photograph had been

taken while Zimmer was on a service call at T.T.'s house approximately three weeks prior

to the incident involving A.T.

       {¶ 16} Zimmerer objected to Officer Seitzman's testimony. The trial court, however,

overruled Zimmerer's objection upon finding Officer Seitzman's testimony was admissible

as "other acts" evidence to show the absence of mistake or accident. As the trial court

stated when overruling Zimmerer's objection:

              I think, based upon the testimony that's been offered thus far,
              granted it's not direct evidence for the State, but what would be
              his statement to the officer is that the position of the camera, the
              front-facing nature of it, that that was an accident. * * * So I do
              think the State can reasonably offer testimony that suggests the
              absence of mistake or accident that Zimmerer's phone was in
              front-facing camera mode. And, for that purpose, the Court will
              allow the testimony.

       {¶ 17} Over Zimmerer's continuing objection, T.T. testified and confirmed Officer

Seitzman's testimony that Zimmerer had come to her house for a service call approximately

three weeks prior to the incident involving A.T. T.T. also confirmed that the photograph

Officer Seitzman had discovered on Zimmerer's phone was in fact a photograph of her


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"backside" while she was "walking up [her] basement steps." The state then rested.

       {¶ 18} Zimmerer testified in his defense and acknowledged that he was the service

technician who had been dispatched to A.T. and D.T.'s home to repair their broken air

conditioner. Zimmerer testified that upon his arrival he went inside and "took a picture of

the inside unit, of course." Zimmerer testified that he then went outside and opened the

service panel on the outside air conditioner unit. Once the service panel was removed,

Zimmerer testified that he discovered the air conditioner "was just completely full of a mouse

and nest." Believing this to be the problem, Zimmer testified that he instructed A.T. to go

inside and get a bag and gloves so that she could remove the mouse herself. This was

because, according to Zimmerer, there would have been "a charge to remove the mouse."

       {¶ 19} Zimmerer testified that A.T. then went inside while he stayed outside by the

air conditioner "trying to get a picture" of the air conditioner's model number. Zimmerer

testified that this required him to put his cellphone into the front-facing camera mode

because the air conditioner was "too close to the wall, so I had to take it out and do it that

way." Zimmerer testified that A.T. then came back outside with a bag and gloves to remove

the mouse, "so I just went with that." After A.T. removed the mouse, Zimmerer testified that

he began sweeping out the unit. During this time, Zimmerer testified that A.T. assisted him

by holding the bag open. However, according to Zimmer, because the sweeping "was

making a bunch of dust," he "had [his] face in [his] shirt to try to keep from breathing the

debris."

       {¶ 20} Explaining what happened next, Zimmerer then testified:

              Q: And then, as you were doing that, [A.T.] indicated that you
              were attempting to photograph beneath her skirt, her legs?

              A: Yes.

              Q: Is that what you were trying to do?


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              A: No.

              Q: What were you doing?

              A: I was just trying to sweep out the mess and do my job.

        {¶ 21} Continuing, Zimmerer testified:

              Q: Did you ever have any intention of trying to photograph
              [A.T.]?

              A: No.

              Q: Videotape her?

              A: No.

              ***

              Q: Did you take any pictures of her?

              A: No.

        {¶ 22} Zimmerer testified that he continued to clean out the unit when A.T. looked

back at him, "and [he] was like, what?" Zimmerer testified that A.T. then grabbed his phone

out of his hand and accused him of "[t]rying to take pictures up her dress." To this, Zimmerer

testified that he took his phone back from A.T. and tried "bring [his] photos up" so that he

could show A.T. that he had not taken any pictures of her. However, according to Zimmerer,

"that's when her husband came out and told me to get the 'F' out of there." Zimmerer then

testified:

              Q: Okay. So you attempted to tell them or show them what was
              going on?

              A: Absolutely.

              Q: And then their response was, get the "F" out?

              A: Yes.

              Q: And did you get the "F" out?

              A: I surely did.

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      {¶ 23} Zimmerer also testified:

             Q: When [D.T.] indicates that you were pressing on your phone
             when he came down, were you doing that? And if you were,
             what were you trying to do?

             A: I was pressing my phone; I was just trying to show him that I
             didn't have any pictures of her.

             Q: Okay.

             A: I was just trying to show her that I did not do it.

             Q: Were you deleting anything at that time?

             A: No.

      {¶ 24} Zimmerer further testified about the photograph Officer Seitzman found on his

phone depicting T.T.'s backside as she walked up her basement steps. As part of this

testimony, Zimmerer acknowledged that he had taken the photograph of T.T. during a

service call at T.T.'s house approximately three weeks before the incident involving A.T.

However, when asked why he had taken that photograph, Zimmerer testified that it was an

accident, that he never intended to take the photograph of T.T., that he did not know how it

happened, but "it was there." Zimmerer then rested.

                    The Trial Court's Guilty Verdict and Sentencing

      {¶ 25} Following closing arguments, the trial court issued its decision finding

Zimmerer guilty as charged. In so holding, the trial court initially noted that there was no

actual photograph or video recording of A.T. found on Zimmerer's cellphone. However, the

trial court explained this away by finding Zimmerer's "frantic pushing of the phone" was

likely him "deleting" any photographs or video recordings that he had made of A.T. from his

phone.

      {¶ 26} The trial court then noted the other evidence that it found supported its guilt

finding, "circumstantial as it may be." This includes Zimmerer's unusual behavior of asking

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A.T. to "assist [him] in the repair" when that is not typically how service calls are conducted,

as well as Zimmerer instructing A.T. to pull out the mouse so that he could "spend all the

time brushing out the mouse nest." This was in addition to the fact that Zimmerer continued

to hold his phone even though "[h]e's so concerned about breathing in the debris that he

has to tuck his face into his shirt." According to the trial court, this was "proof positive" that

Zimmerer had set up a "deliberate design and plan" to have his "phone out and ready" to

secretly or surreptitiously photograph or video record A.T.

        {¶ 27} On September 10, 2019, the trial court held a sentencing hearing and

sentenced Zimmerer to 180 days in jail, with 150 of those days suspended. The trial court

also placed Zimmerer on two years of reporting probation, designated Zimmerer a Tier I

sex offender, and ordered Zimmerer pay a fine and court costs. The trial court further

required Zimmerer to receive a mental health evaluation and to stay away from A.T. and

her family. Zimmerer now appeals his conviction, raising two assignments of error for

review.1 For ease of discussion, we will address Zimmerer's two assignments of error out

of order.

                                                  Appeal

        {¶ 28} Assignment of Error No. 2:

        {¶ 29} THE TRIAL COURT ERRED TO THE PREJUDICE OF APPELLANT IN

ADMITTING OTHER ACTS EVIDENCE AT TRIAL.

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

admitting "other acts" evidence at trial. Specifically, Zimmer argues that it was improper for

the trial court to admit evidence that he had taken a photograph of another female customer,

T.T., when she was walking up her basement stairs while he was at her house for a service




1. We note that the trial court stayed Zimmerer's jail sentence pending appeal.
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call approximately three weeks prior to the incident in this case. We disagree.

       {¶ 31} "Evidence that an accused committed a crime other than the one for which he

is on trial is not admissible when its sole purpose is to show the accused's propensity or

inclination to commit crime or that he acted in conformity with bad character." State v.

Grimm, 12th Dist. Clermont No. CA2018-10-071, 2019-Ohio-2961, ¶ 17, citing State v.

Morgan, 12th Dist. Butler Nos. CA2013-08-146 and CA2013-08-147, 2014-Ohio-2472, ¶

40. To that end, pursuant to Evid.R. 404(B), evidence of other crimes, wrongs, or acts is

not admissible to prove the character of a person in order to show that a person acted in

conformity therewith on a particular occasion. State v. Hart, 12th Dist. Warren No. CA2008-

06-079, 2009-Ohio-997, ¶ 11. Such evidence, however, is permitted for other purposes,

including proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or the

absence of mistake or accident. State v. Thomas, 12th Dist. Butler No. CA2012-11-223,

2013-Ohio-4327, ¶ 22.

       {¶ 32} Similar to Evid.R. 404(B), the General Assembly has promulgated R.C.

2945.59, which provides:

              In any criminal case in which the defendant's motive or intent,
              the absence of mistake or accident on his part, or the
              defendant's scheme, plan, or system in doing an act is material,
              any acts of the defendant which tend to show his motive or
              intent, the absence of mistake or accident on his part, or the
              defendant's scheme, plan, or system in doing the act in question
              may be proved, whether they are contemporaneous with or prior
              or subsequent thereto, notwithstanding that such proof may
              show or tend to show the commission of another crime by the
              defendant.

       {¶ 33} Both the statute and the rule "codify the common law with respect to evidence

of other acts of wrongdoing," and preclude admission of other acts evidence to prove a

character trait in order to demonstrate conduct in conformity with that trait. State v. Williams,

134 Ohio St.3d 521, 2012-Ohio-5695, ¶ 16; State v. Vore, 12th Dist. Warren No. CA2011-


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08-093, 2012-Ohio-2431, ¶ 39-40. Therefore, under either Evid.R. 404(B) or R.C. 2945.59,

"[t]o be admissible, the other-act evidence must tend to show by substantial proof one or

more of the things that the rule or statute enumerates," such as motive, opportunity, intent,

preparation, plan, knowledge, identity, or absence of mistake or accident.             State v.

Blankenburg, 197 Ohio App.3d 201, 2012-Ohio-1289, ¶ 68 (12th Dist.). "[T]he trial court is

afforded broad discretion regarding the admission of other acts evidence" that will not be

reversed absent an abuse of that discretion. State v. Ward, 12th Dist. Clermont No.

CA2013-07-059, 2014-Ohio-990, ¶ 40; Vore at ¶ 41.

       {¶ 34} There is no dispute that the trial court admitted the photograph of T.T. found

on Zimmerer's phone to show an absence of mistake or accident in accordance with Evid.R.

404(B) and R.C. 2945.59. Zimmerer nevertheless argues that this exception does not apply

to the incident involving A.T. since, unlike with T.T., "he did not claim that he accidentally

photographed [A.T.]" However, while it may be true that no photograph of A.T. was ever

found on Zimmerer's phone, and while Zimmerer never claimed to have ever photographed

A.T. either intentionally or accidentally, Zimmerer did tell Officer Seitzman that it "must have

been an accident" that his phone's forward-facing camera was turned on while he was at

A.T. and D.T.'s residence to service their air conditioner.

       {¶ 35} The trial court determined that the evidence surrounding the photograph of

T.T. found on Zimmerer's phone could be admitted "for that purpose," i.e., to demonstrate

the absence of mistake or accident that Zimmerer's phone was in forward-facing camera

mode while at A.T. and D.T.'s residence. When considering this matter was tried to the

bench, we find no error in the trial court's decision. This is because, in a bench trial, "the

trial court is presumed to know the applicable law and apply it accordingly." State v.

Cornish, 12th Dist. Butler No. CA2014-02-054, 2014-Ohio-4279, ¶ 30, citing State v. Lloyd,

12th Dist. Warren Nos. CA2007-04-052 and CA2007-04-053, 2008-Ohio-3383.                   More

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specifically, as it relates to the facts of this case, in a bench trial "a judge is presumed to

use evidence for its proper limited purposes and therefore, concern that other acts evidence

will be improperly considered by the trier of fact does not exist * * *." State v. Pettaway, 3d

Dist. Seneca No. 13-14-18, 2015-Ohio-1597, ¶ 31. Therefore, finding no error in the trial

court's decision admitting this "other acts" evidence at trial, Zimmerer's second assignment

of error lacks merit and is overruled.

       {¶ 36} Assignment of Error No. 1:

       {¶ 37} THE EVIDENCE WAS INSUFFICIENT TO SUPPORT A CONVICTION FOR

VOYEURISM UNDER R.C. 2907.08(D).

       {¶ 38} In his first assignment of error, Zimmerer argues his conviction for voyeurism

was not supported by sufficient evidence. We disagree.

       {¶ 39} 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 No. 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. 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.

       {¶ 40} As noted above, Zimmerer was convicted of voyeurism in violation of R.C.

2907.08(D). Pursuant to that statute, "[n]o person shall secretly or surreptitiously videotape,

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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."     The term "surreptitious" is commonly defined to mean

something that is "unauthorized and clandestine" that is done by "stealth and without

legitimate authority." State v. Latimore, 12th Dist. Butler No. CA2015-09-175, 2016-Ohio-

2989, ¶ 11. Therefore, by its terms, "[t]he 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.'" State v. Hopper, 5th Dist. Licking Nos. 15-CA-92 thru 15-CA-96, 2016-

Ohio-5760, ¶ 21.

      {¶ 41} Zimmerer argues his conviction is not supported by sufficient evidence

because the state failed to prove he actually took, or even attempted to take, a photograph

or video recording of A.T. To support this claim, Zimmerer relies on this court's decision in

Middletown v. Reuss, 12th Dist. Butler Nos. CA2015-06-109 and CA2015-06-122, 2016-

Ohio-996.    In that case, appellant, David A. Reuss, appealed his conviction in the

Middletown Municipal Court for attempted voyeurism in violation of Middletown Codified

Ordinance Section 666.05(d), a local ordinance that mirrors R.C. 2907.08(D). The charge

arose after Reuss held his cellphone above a partition wall at a local tanning salon and

pointed the phone's camera lens in the victim's direction "seemingly videotaping or

photographing her" while she was "[b]are chested and clad only in panties." Id. at ¶ 2. Upon

seeing the camera lens pointed in her direction, the victim "covered herself and yelled,

banging on the partition." Id. at ¶ 3. The victim then confronted Reuss, who denied any

wrongdoing and quickly left the tanning salon only to be arrested at work a few days later.

Id.

      {¶ 42} Reuss appealed his conviction challenging the sufficiency of the evidence

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presented at trial. In support, Reuss raised two issues for review, only one of which is

relevant here; that being whether the trial court "conflated the concepts of intent and

attempt" and "improperly integrated the concepts of intent and attempt" in finding Reuss

guilty of attempted voyeurism. Id. at ¶ 14, 16. Upon review, this court found Reuss'

assertion was "supported by the trial court's remarks" at sentencing where the trial court

stated, "I don't know if you took the picture or not but I think that was your intention to do it."

Id. at ¶ 16. Therefore, "[b]y its own admission," this court determined that the trial court was

"unable to discern whether Reuss actually perpetrated an attempt." Id.

       {¶ 43} This court instead found the trial court had improperly "rested its finding of

guilt upon its belief that Reuss intended to photograph [the victim]." Id. Accordingly, "[w]hile

there may have been evidence that Reuss intended to videotape or photograph [the victim],"

this court held that "this does not constitute proof sufficient to convince the average mind

beyond a reasonable doubt that [Reuss] attempted to do so." Id. at ¶ 17. In so holding, this

court stated:

                According to her testimony, [the victim] could not tell whether
                Reuss' phone was operating when she glanced up from her
                tanning booth. The phone bore no indication regarding whether
                it was actively photographing or recording her. Police were
                unable to recover any photographs or video recordings from the
                phone seized. Furthermore, Reuss never admitted to making a
                video recording or taking a photograph of [the victim]. Without
                more, the trial court erred in basing its finding of guilt on Reuss'
                intent to violate the voyeurism statute.

Id. at ¶ 18.

       {¶ 44} Zimmerer claims that the facts in Reuss are identical to the facts presented

here, thereby requiring his conviction be reversed. However, unlike in Reuss where the

victim could not tell if Reuss' phone was working since the phone "bore no indication" that

it was "actively photographing or recording," in this case A.T. specifically testified that she

looked over her shoulder and noticed Zimmerer's arm "completely outstretched behind [her]

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body" holding his phone, which was "in the camera mode," displaying on its screen "the

edge of [her] dress," her legs, and "the back of [her] thigh, which would have been covered

by [her] dress." Therefore, markedly different from the facts presented in Reuss, the facts

presented here indicate Zimmerer was using, or had used, his phone as a camera to

secretly or surreptitiously photograph and/or video record A.T. under her clothing for the

purpose of viewing her body or her undergarments. This is a clear violation of the voyeurism

statute at issue here, R.C. 2907.08(D).

      {¶ 45} Despite Zimmerer's claims, this holds true even though no photograph or

video recording of A.T. was ever discovered on Zimmerer's phone. As noted above, R.C.

2907.08(D) makes it a crime for any person to "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." We must therefore agree with Zimmerer's argument "that the taking of

a photograph, video, or other recording is an essential element of voyeurism under R.C.

2907.08(D)." However, simply because Zimmerer denied ever taking a photograph or video

recording of A.T., coupled with the fact that no photographs or video recordings of A.T. were

ever discovered on Zimmerer's phone, does not mean Zimmerer never actually secretly or

surreptitiously photographed or video recorded A.T. as alleged in the complaint. That only

means the state was unable to provide direct evidence of that element.

      {¶ 46} "When offering proof, both circumstantial and direct evidence have the same

probative value, and in some instances, certain facts can be established only by

circumstantial evidence." State v. Crowe, 12th Dist. Warren No. CA2015-07-065, 2016-

Ohio-1579, ¶ 19, citing State v. Crutchfield, 12th Dist. Warren No. CA2005-11-121, 2006-

Ohio-6549, ¶ 20. When viewing the evidence in a light most favorable to the state, which

we are required to do when reviewing a challenge to the sufficiency of the evidence, the

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evidence in this case, albeit circumstantial, supports the trial court's guilt finding. This

includes the trial court's decision finding Zimmerer's "frantic pushing of the phone" was likely

him "deleting" any photographs or video recordings that he had made of A.T. from his

phone. Circumstantial evidence is sufficient to sustain a conviction if that evidence would

convince the average mind of the defendant's guilt beyond a reasonable doubt. State v.

McKnight, 107 Ohio St.3d 101, 2005-Ohio-6046, ¶ 75. A conviction based on circumstantial

evidence is no less sound than one based on direct evidence. State v. Petit, 12th Dist.

Madison No. CA2016-01-005, 2017-Ohio-633, ¶ 18.               Therefore, finding Zimmerer's

conviction for voyeurism was supported by sufficient evidence, Zimmerer's first assignment

of error lacks merit and is overruled.

       {¶ 47} Judgment affirmed.


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




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