State v. Breeden

2023 Ohio 1872

• Court: Ohio Court of Appeals
• Decided: June 7, 2023
• Docket: C-220325
• Status: Published

Opinion

[Cite as State v. Breeden, 2023-Ohio-1872.]

IN THE COURT OF APPEALS FIRST APPELLATE DISTRICT OF OHIO HAMILTON COUNTY, OHIO

STATE OF OHIO, : APPEAL NO. C-220325 TRIAL NO. 22CRB-2482 Plaintiff-Appellee, :

vs. : O P I N I O N. MANDEL BREEDEN, :

Defendant-Appellant. :

Criminal Appeal From: Hamilton County Municipal Court

Judgment Appealed From Is: Affirmed

Date of Judgment Entry on Appeal: June 7, 2023

Emily Smart Woerner, City Solicitor, William T. Horsley, Chief Prosecuting Attorney, and Susan M. Zurface, Assistant Prosecuting Attorney, for Plaintiff-Appellee City of Cincinnati,

Raymond T. Faller, Hamilton County Public Defender, and Sarah E. Nelson, Assistant Public Defender, for Defendant-Appellant. OHIO FIRST DISTRICT COURT OF APPEALS

ZAYAS, Presiding Judge.

{¶1} Mandel Breeden appeals his conviction, after a bench trial, for public

indecency. In one assignment of error, Breeden argues that his conviction is not

supported by sufficient evidence and is contrary to the manifest weight of the evidence.

For the reasons that follow, we affirm the judgment of the trial court.

Background

{¶2} Mandel Breeden was charged with public indecency for engaging in

sexual conduct in Mt. Airy Forest. After Breeden pled not guilty, the case proceeded

to a bench trial. Nathaniel Young, a police specialist in the Cincinnati Police

Department’s Vice Squad, testified that he was working undercover and investigating

complaints of sexually deviant behavior in Mt. Airy Park.

{¶3} On December 3, 2021, Young was observing the area around Oak Ridge

Lodge at 9:30 a.m. He observed a man, later identified as Douglas Witt, masturbating

and exposing himself near the lodge. Young watched as Witt walked down a set of

stairs behind the lodge next to a veranda and enter the woods. Witt went past a sign

that said, “Do Not Enter This Area. This is a [sic] Open Area for Hunting.”

{¶4} Young began walking toward the parking lot to update the surveillance

team. As he was returning to the team, Mandel Breeden walked past him. Young

noted that Breeden appeared to be “walk[ing] with a purpose” past the veranda, down

the steps, and onto the same trail that Witt had taken. Young began to follow him.

When he got to the rock wall where the veranda starts, he could see Witt standing at a

picnic table without his pants and with an erect penis. Although the picnic table was

approximately ten yards inside the wood-line, Young could see him clearly because the

trees had no leaves.

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{¶5} Young followed Breeden down the path toward the picnic table and

observed Breeden approach Witt. Breeden removed his erect penis from his pants and

engaged in anal intercourse with Witt. At this time, Young was approximately two feet

from them. Young recorded the incident on his cell phone, and the state admitted the

recording into evidence. The recording did not reflect all of his observations as he was

walking around the park because his cell phone was in his pocket.

{¶6} Young testified that the area where the conduct occurred was used by

hunters, hikers, people walking around the lodge, people in the immediate parking lot,

and park employees. At the time, there were multiple cars in the parking lot and

several people walking in the area. Young further testified that anyone on the veranda

would be able to see the men because the veranda was elevated and overlooked the

picnic table.

{¶7} Young informed Mary Warner, a second officer on the Vice Squad, of

his observations. Warner testified that she ran the license plate number of the car that

Breeden had driven to the park. When she identified his name, she obtained his photo

through Facebook, and Young identified him. Later, Warner contacted Breeden by

phone and asked him to come to the police station. When he arrived, Warner served

him a citation.

{¶8} After Warner’s testimony, the trial court found Breeden guilty.

{¶9} Breeden now appeals, and in one assignment of error, he contends that

his conviction for public indecency was not supported by sufficient evidence and ran

contrary to the manifest weight of the evidence. In particular, Breeden argues that his

conduct was not likely to be viewed by others.

Law and Analysis

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{¶10} In reviewing a challenge to the sufficiency of the evidence, a reviewing

court must determine whether, after viewing the evidence in the light most favorable

to the prosecution, any rational trier of fact could have found the essential elements of

the crime had been proved beyond a reasonable doubt. State v. Jenks, 61 Ohio St.3d

259, 574 N.E.2d 492 (1991), paragraph two of the syllabus.

{¶11} When considering a weight-of-the-evidence claim, we review “ ‘the

entire record, weigh the evidence and all reasonable inferences, consider the

credibility of the witnesses and determine 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.

Bailey, 1st Dist. Hamilton No. C-140129, 2015-Ohio-2997, ¶ 59, quoting State v.

Thompkins, 78 Ohio St.3d 380, 678 N.E.2d 541 (1997). We afford substantial

deference to credibility determinations because the factfinder sees and hears the

witnesses. See State v. Glover, 1st Dist. Hamilton No. C-180572, 2019-Ohio-5211, ¶

30. This court will not substitute its judgment for that of the trier of fact on the issue

of witness credibility unless it is patently apparent that the trier of fact lost its way in

arriving at its verdict. Bailey at ¶ 63.

{¶12} R.C. 2907.09(A)(2) provides that no person shall recklessly engage in

sexual conduct “under circumstances in which 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.” Thus, the state was required to prove that

Breeden “(1) acted recklessly; (2) exposed his private parts; (3) under circumstances

likely to be viewed by others; (4) likely to affront others; and (5) in his physical

proximity.” State v. Imboden, 4th Dist. Ross No. 21CA3752, 2022-Ohio-4580, ¶ 26.

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The relevant inquiry is whether an offender’s conduct would likely have been viewed

by others. See State v. Fornshell, 1st Dist. Hamilton No. C-180267, 2021-Ohio-674, ¶

26. It is immaterial whether others actually viewed the conduct. See id.

{¶13} Breeden argues that his conduct was not committed under

circumstances likely to be viewed by others because the area was secluded and

restricted to hunters.

{¶14} Reviewing the evidence adduced at trial, the testimony reveals that

Young had an unobstructed view from the veranda of Witt standing at a picnic table

without his pants on and with an erect penis. Later, Breeden engaged in sexual

conduct at the same picnic table. Additionally, Young testified that the conduct could

be viewed by hikers or hunters near the wooded area and anyone on the veranda.

Therefore, construing the evidence in a light most favorable to the state, any rational

trier of fact could have found that Breeden’s conduct was likely to be viewed by others.

{¶15} Breeden further argues that Young’s testimony that the picnic table was

visible from the veranda should be discounted because the video showed a significant

amount of foliage blocking the view. Young’s recording shows the rock wall at the start

of the veranda. However, the recording does not depict his visual observations due to

the location of the camera in his pocket. The factfinder was free to conclude that

Young’s testimony was credible. Based on this record, the factfinder did not clearly

lose its way and create a manifest miscarriage of justice.

{¶16} Accordingly, we overrule the assignment of error.

Conclusion

{¶17} Having overruled the sole assignment of error, we affirm the trial court’s

judgment.

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Judgment affirmed.

WINKLER and BOCK, JJ., concur.

Please note: The court has recorded its own entry this date.