Cleveland v. Imrie

2021 Ohio 308

• Court: Ohio Court of Appeals
• Decided: February 4, 2021
• Docket: 109226
• Status: Published

Opinion

[Cite as Cleveland v. Imrie, 2021-Ohio-308.]

COURT OF APPEALS OF OHIO

EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

CITY OF CLEVELAND, :

Plaintiff-Appellee, : No. 109226 v. :

JUSTIN H. IMRIE, :

Defendant-Appellant. :

JOURNAL ENTRY AND OPINION

JUDGMENT: AFFIRMED RELEASED AND JOURNALIZED: February 4, 2021

Criminal Appeal from the Cleveland Municipal Court Case No. 2018-CRB-003909

Appearances:

Barbara A. Langhenry, Cleveland Director of Law, and Jonathan L. Cudnik, Assistant City Prosecutor, for appellee.

Ruth R. Fischbein-Cohen, for appellant.

ANITA LASTER MAYS, J.:

Defendant-appellant, Justin Imrie (“Imrie”), appeals his conviction

and sentence and asks this court to reverse and vacate both. We affirm.

After a bench trial, Imrie was found guilty of voyeurism, a second-

degree misdemeanor, in violation of R.C. 2907.08(B). The trial court sentenced Imrie to a suspended sentence of 90 days in jail. The trial court also placed Imrie

on five years of probation, ordered him to attend Alcoholics Anonymous, and

required him to register as a Tier I sex offender.

I. Facts and Procedural History

On February 3, 2018, S. Farrier (“Farrier”), a security guard at The

Archer apartments, walked into the women’s restroom located in the lobby area

after finishing one of her patrols. When Farrier entered one of the stalls, she noticed

that the stall next to her was occupied. As Farrier undressed and sat to use the toilet,

she observed a hand holding a cellphone, camera facing her, coming from beneath

the stall next to her. Farrier began recording on her cellphone. After a few minutes,

Farrier stood up on her toilet, looked over to the other stall, and asked if Imrie was

recording her. Imrie walked out of the stall, but never answered the question.

Farrier left the restroom, went to the concierge’s desk and reported

the incident. She also contacted the police and showed them the video. A Cleveland

Police Department, Sex Crimes Unit detective was assigned to investigate the

incident. After reviewing the video from Farrier’s cellphone, the detective

interviewed Imrie. In the recorded interview with police, Imrie stated that he was

intoxicated and thought that he was in the men’s restroom not the women’s

restroom. He also stated that he was using the restroom and was probably looking

at his phone. The detective informed Imrie that his account differs from the victim’s

account. In fact, Farrier’s video shows that Imrie’s pant were up, and he was not using the restroom as he told police. Imrie was charged with voyeurism and

subsequently pleaded not guilty. A bench trial was held on August 20, 2018.

During trial, Imrie stated that he was intoxicated and mistakenly fell

asleep while sitting on the toilet in the women’s restroom. He then stated that he

slightly moved his shoulder because he was in pain. Then when he moved his

shoulder, his cellphone was in his hand, and it may have appeared as if he was

recording the person in the next stall. However, Farrier’s video clearly shows that

Imrie moved his cellphone, left and right, up and down, at the barrier of Farrier’s

stall and appeared to be recording her.

At the conclusion of the bench trial, the trial court found Imrie guilty.

Imrie was sentenced on October 25, 2019. Imrie thereafter filed this timely appeal,

assigning the following errors for our review:

I. The indictment and conviction were against the sufficiency of the evidence and the manifest weight of the evidence; and

II. The case does not present a legal theory of criminal trespass into the ladies’ restroom.

II. Sufficient and Manifest Weight of the Evidence

A. Standard of Review

“A challenge to the sufficiency of the evidence supporting a conviction

requires a determination of whether the state met its burden of production.” State v.

Hunter, 8th Dist. Cuyahoga No. 86048, 2006-Ohio-20, ¶ 41, citing State v.

Thompkins, 78 Ohio St.3d 380, 390, 678 N.E.2d 541 (1997). When reviewing

sufficiency of the evidence, an appellate court must determine “‘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. Leonard, 104 Ohio St.3d 54, 2004-Ohio-6235, 818

N.E.2d 229, ¶ 77, quoting State v. Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492 (1991),

paragraph two of the syllabus. In a sufficiency inquiry, an appellate court does not

assess whether the evidence is to be believed but whether, if believed, the evidence

admitted at trial supported the conviction beyond a reasonable doubt. State v.

Starks, 8th Dist. Cuyahoga No. 91682, 2009-Ohio-3375, ¶ 25; Jenks at paragraph

two of the syllabus.

“While the test for sufficiency requires a determination of whether the

prosecution has met its burden of production at trial, a manifest weight challenge

questions whether the prosecution has met its burden of persuasion.” State v.

Bowden, 8th Dist. Cuyahoga No. 92266, 2009-Ohio-3598, ¶ 13, citing Thompkins

at 390. “When considering a manifest weight claim, a reviewing court must examine

the entire record, weigh the evidence, and consider the credibility of witnesses.” Id.,

citing State v. Thomas, 70 Ohio St.2d 79, 80, 434 N.E.2d 1356 (1982).

In reviewing the manifest weight of evidence, when there is a bench

trial, we recognize that the trial court is serving as the factfinder:

Accordingly, to warrant reversal from a bench trial under a manifest weight of the evidence claim, this court must review the entire record, weigh the evidence and all reasonable inferences, consider the credibility of witnesses and determine whether in resolving conflicts in evidence, the trial court clearly lost its way and created such a manifest miscarriage of justice that the judgment must be reversed and a new trial ordered. State v. Ferguson, 8th Dist. Cuyahoga No. 108603, 2020-Ohio-3119, ¶ 22, quoting

State v. Bell, 8th Dist. Cuyahoga No. 106842, 2019-Ohio-340, ¶ 41.

B. Law and Analysis

In Imrie’s first assignment of error, he first argues that the evidence

was not sufficient to convict him of voyeurism. Imrie contends that he was

intoxicated when he came into the apartment building mistakenly walking into the

women’s restroom. Imrie claims that he fell asleep on the toilet, which makes it

impossible for him to commit the act of voyeurism because he could not sexually

gratify himself while asleep.

In order for the appellant to be convicted of voyeurism, the state had

to prove beyond a reasonable doubt that Imrie, for the purpose of sexually arousing

or gratifying himself, committed trespass or otherwise surreptitiously invaded the

privacy of Farrier to videotape, film, photograph, or otherwise record Farrier in a

state of nudity. See R.C. 2907.08(B).

Farrier’s recording demonstrates that once she undressed herself and

sat on the toilet, Imrie moved his cellphone very close to her stall and began

recording her. The video shows Imrie’s cellphone moving left to right, up and down,

then left to right in a slow, methodic motion. Imrie contends that he offered his cell

phone to police to prove that there were no recordings of the alleged incident but

they refused to examine his phone. During trial, the interviewing detective stated that he did not check

Imrie’s phone because it was almost two months between the date of the incident

and the date of the interview, which would give Imrie plenty of time to erase the

video. (Tr. 60-61.) Although the police did not look at Imrie’s phone to see if a

recording existed, Farrier’s video presented sufficient direct evidence, corroborated

by her testimony, of Imrie’s act of voyeurism. In addition, this direct evidence is in

direct contradiction to Imrie’s testimony that he was asleep at the time of the

incident.

“Direct evidence exists when ‘a witness testifies about a matter within

the witness’s personal knowledge such that the trier of fact is not required to draw

an inference from the evidence to the proposition that it is offered to establish.’”

State v. Evans, 8th Dist. Cuyahoga No. 108648, 2020-Ohio-3968, ¶ 37, quoting

State v. Cassano, 8th Dist. Cuyahoga No. 97228, 2012-Ohio-4047, ¶ 13. Farrier’s

phone recording demonstrates that Imrie moved his phone at the barrier of her stall

and appeared to record her as she used the restroom.

Imrie also claims that the state did not prove that he was sexually

aroused.

As to the sexual arousal or gratification purpose element, courts have held that it “‘may be inferred when there is no innocent, i.e., nonsexual, explanation for the offender’s conduct.’” State v. Goldblum, 2d Dist. Montgomery No. 25851, 2014-Ohio-5068, ¶ 17, quoting State v. Wilson, 192 Ohio App.3d 189, 2011-Ohio-155, 948 N.E.2d 515, ¶ 47 (11th Dist.). See also State v. Haldeman, 2d Dist. Montgomery No. 18199, 2000 Ohio App. LEXIS 5409, 7 (Nov. 22, 2000) (“The fact that Defendant was neither in a state of undress nor had engaged in masturbation does not prevent a finding that his purpose was sexual gratification or arousal, if that can rationally be inferred from other evidence presented.”).

State v. Banks, 9th Dist. Medina No. 16CA0084-M, 2017-Ohio-8777, ¶ 15.

Circumstantial evidence “is evidence that requires ‘the drawing of

inferences that are reasonably permitted by the evidence.’” Evans at ¶ 37, quoting

Cassano at ¶ 13. “Circumstantial and direct evidence are of equal evidentiary value.”

Id. at ¶ 38, citing State v. Santiago, 8th Dist. Cuyahoga No. 95333, 2011-Ohio-1691,

¶ 12. “Circumstantial evidence is the proof of facts by direct evidence from which

the trier of fact may infer or derive by reasoning other facts in accordance with the

common experience of mankind.” State v. Hartman, 8th Dist. Cuyahoga

No. 90284, 2008-Ohio-3683, ¶ 37 citing State v. Griesheimer, 10th Dist. Franklin

No. 05AP-1039, 2007-Ohio-837.

Imrie’s behavior of sitting on a toilet with his pants up, moving his

cellphone towards Farrier’s stall while she sat on the toilet with her pants down, and

moving his cellphone back and forth under her stall is sufficient evidence

surrounding the incident from which a purpose of sexual arousal or gratification

could be inferred. Given Imrie’s secretive tactics and unusual conduct, we conclude

that the trier of fact could have reasonably inferred that his actions were done for

the purpose of sexual arousal or gratification. Id. See State v. Huffman, 165 Ohio

App.3d 518, 2006-Ohio-1106, 847 N.E.2d 58, ¶ 64 (1st Dist.).

Additionally, “circumstantial evidence and direct evidence inherently

possess the same probative value.” Hartman at ¶ 37, citing State v. Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492 (1991), paragraph one of the syllabus. “The Ohio

Supreme Court has ‘long held that 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.’” Cassano, 8th Dist. Cuyahoga No. 97228, 2012-Ohio-

4047, ¶ 13, quoting State v. Heinish, 50 Ohio St.3d 231, 238, 553 N.E.2d 1026

(1990).

We find that the evidence presented was sufficient to support the

elements of voyeurism.

Imrie also contends that his conviction was against the manifest

weight of the evidence because the facts presented were not believable. In an

appellate court’s review, we must look at the credibility of each witness, resolve

conflicting evidence, and determine if the trial court lost its way in finding Imrie

guilty. Ferguson, 8th Dist. Cuyahoga No. 108603, 2020-Ohio-3119, at ¶ 12.

Imrie’s testimony is that he fell asleep on the toilet due to being

intoxicated. He also argues that his shoulder moved, which gave the appearance

that he was moving his cellphone under the bathroom stall. However, during the

police interview, Imrie stated that he had to use the restroom badly and went into

the first restroom he saw, not knowing it was the women’s restroom. He stated that

while he was on the toilet, he could have been looking at his phone. Farrier’s video

clearly shows that Imrie was not asleep, as he testified. He was also not using the

restroom because his pants were still up as he sat on the toilet. Farrier stated that

once she undressed to use the restroom, she observed Imrie moving a cellphone under her stall recording her. Farrier began recording Imrie’s actions on her

cellphone. The video evidence supports Farrier’s testimony. We find that the trial

court did not lose its way and create a manifest miscarriage of justice in finding Imrie

guilty.

Therefore, Imrie’s first assignment of error is overruled.

III. Legal Theory of Criminal Trespass

Imrie argues that the state did not provide a legal theory that he

committed criminal trespass, which is an element of the crime of voyeurism, under

R.C. 2907.08(B). Essentially Imrie is arguing that the evidence was not sufficient to

convict him of voyeurism because he was intoxicated and could not have known that

he was in the women’s restroom. However, the state was not required to prove

criminal trespass or that Imrie knew he was in the women’s restroom.

R.C. 2907.08(B) states, “[n]o person, for the purpose of sexually

arousing or gratifying the person’s self, shall commit trespass or otherwise

surreptitiously invade the privacy of another to videotape, film, photograph, or

otherwise record the other person in a state of nudity.” The statute states no person

shall commit trespass or surreptitiously invade the privacy of another.

“Surreptitious” is defined as “unauthorized and clandestine; done by stealth and

without legitimate authority.” Banks, 9th Dist. Medina No. 16CA0084-M, 2017-

Ohio-8777, at ¶ 14, quoting Black’s Law Dictionary (10th Ed.2014). Invasion of

privacy occurs when there is a “wrongful intrusion into one’s private activities in

such a manner as to outrage or cause mental suffering, shame or humiliation to a person of ordinary sensibilities.” Acacia on the Green Condo. Assn. v. Gottlieb, 8th

Dist. Cuyahoga No. 92145, 2009-Ohio-4878, ¶ 60.

Using the restroom in a stall is a private activity. Imrie’s act of

recording Farrier in the stall is a wrongful intrusion into her private activity. The

state does not have to prove that Imrie committed criminal trespass. See, e.g., Banks

at ¶ 14. All that is required is evidence, direct or circumstantial, that Imrie invaded

the privacy of another to videotape the other person in a state of nudity.

Imrie incorrectly argues that the state was required to prove that he

knew he was in the women’s restroom. The restroom that Imrie chose is not the

issue. The pertinent issue is that Imrie, without authority, placed his cellphone in a

position that caused him to record Farrier as she undressed and used the restroom.

In other words, if Imrie used his cellphone to record another person in the men’s

restroom, he would still be guilty of voyeurism. By using his cellphone to record

Farrier in the privacy of her restroom stall, we find that Imrie invaded her privacy.

Therefore, Imrie’s second assignment of error is overruled.

Judgment affirmed.

It is ordered that appellee recover from appellant costs herein taxed.

The court finds there were reasonable grounds for this appeal.

It is ordered that a special mandate issue out of this court directing the

Cleveland Municipal Court to carry this judgment into execution. A certified copy of this entry shall constitute the mandate pursuant to

Rule 27 of the Rules of Appellate Procedure.

______________________________ ANITA LASTER MAYS, JUDGE

SEAN C. GALLAGHER, P.J., and EILEEN T. GALLAGHER, J., CONCUR