State v. Hardgrove

2022 Ohio 3993

• Court: Ohio Court of Appeals
• Decided: November 8, 2022
• Docket: 2021CA00154
• Status: Published

Opinion

[Cite as State v. Hardgrove, 2022-Ohio-3993.]

COURT OF APPEALS STARK COUNTY, OHIO FIFTH APPELLATE DISTRICT

STATE OF OHIO JUDGES: Hon. William B. Hoffman, P. J. Plaintiff-Appellee Hon. John W. Wise, J. Hon. Craig R. Baldwin, J. -vs- Case No. 2021CA00154 DUSTIN DALE HARDGROVE

Defendant-Appellant OPINION

CHARACTER OF PROCEEDING: Criminal Appeal from the Canton Municipal Court, Case No. 2021CR03240

JUDGMENT: Affirmed

DATE OF JUDGMENT ENTRY: November 8, 2022

APPEARANCES:

For Plaintiff-Appellee For Defendant-Appellant

KRISTEN BATES-AYLWARD GEORGE URBAN CANTON LAW DIRECTOR 116 Cleveland Avenue, NW JASON P. REESE Suite 808 CANTON CITY PROSECUTOR Canton, Ohio 44702 CARRIE D’ANDREA ASSISTANT PROSECUTOR 218 Cleveland Avenue, SW Canton, Ohio 44702 Stark County, Case No. 2021CA00154 2

Wise, J.

{¶1} Appellant Dustin Hardgrove appeals his conviction on one count of

voyeurism, entered in the Canton Municipal Court following a jury trial.

{¶2} Appellee is the state of Ohio.

STATEMENT OF THE FACTS

{¶3} For purposes of this Opinion, the relevant facts and procedural history are

as follows:

{¶4} On July 14, 2021, Appellant Dustin Hardgrove was charged with one count

of Voyeurism, in violation of R.C. § 2907.08 (B), a second-degree misdemeanor.

{¶5} On November 15, 2021, the matter proceeded to jury trial. At trial, the jury

heard the following testimony:

{¶6} Appellant Dustin Hardgrove lived with his ex-girlfriend, S.P. in Canton for

several years, until about 2021. (T. at 133). He lived with her and her adult daughter M.P.,

who was twenty-two years old and had moved back into their residence in 2020. (T. at

128).

{¶7} On July 6, 2021, while cleaning Appellant’s work book bag, S.P. discovered

a cell phone that she had never seen before and turned it on because she suspected

Appellant of cheating. (T. at 131-33, 135-36). When she did, S.P. found two videos of her

daughter M.P. (T. at 136-37). The videos showed M.P. getting dressed and undressed

after showering, one of which occurred around 5:00 a.m. (T. at 142-43, 149-50, 282-84).

In one video, M.P.’s breasts were visible and in another, her buttocks were visible. The

family dog blocked view of her pelvic area. (T. at 139, 143, 148-49, 218). In one of the

videos, a man’s face is visible while he was setting up the camera strategically in the Stark County, Case No. 2021CA00154 3

hallway near a closet Appellant used across from M.P.’s bedroom. (T. at 145, 154-55,

230). M.P. testified that she had no knowledge that she was being recorded, and she felt

like she could not “live in her own house without her privacy being invaded.” (T. at 195,

217). The video showed a man with glasses, facial hair (beard and mustache), ears

“stickin’ out”, a hat being worn backwards, the same shoes Appellant was known to wear,

his voice, and “scrawny” and “hairy” legs. (T. at 145, 162-63, 195, 217, 273).

{¶8} S.P. showed the video to her close friend, Jennifer. (T. at 217). Because

all of these attributes matched Appellant, S.P., M.P. and Jennifer all believed the man in

the video was Appellant. (T. at 162-163; 195, 217). S.P. testified that other men did not

come to the house, and she was familiar with Appellant and his voice, which could be

heard in the videos, because she was in a relationship and living with him. (T. at 140-41,

147-48, 162-63, 195, 273).

{¶9} S.P. also testified that in the past, Appellant had used his cell phone to send

pictures of his penis to other women. (T. at 156).

{¶10} S.P. called the police and then contacted Appellant about the videos and

he told her, “I don’t remember doing that. If I did it, I don’t remember.” (T. at 166).

{¶11} Upon arriving at the residence, Deputy House of the Stark County Sheriff’s

Office spoke with S.P. and M.P. and confirmed that M.P. did not give anyone permission

to videotape her. (T. at 228-229). Deputy House testified that in his experience as a police

officer, the purpose of videotaping a young woman naked is for personal pleasure. (T. at

234).

{¶12} Deputy House testified that he spoke with Appellant who told him that

“basically he was kinda saying he might of done it but he didn’t remember bec - or he Stark County, Case No. 2021CA00154 4

couldn’t remember because he was drinking but he said he was kinda - - to me he was

kinda of confessing that he did but at the same time he was trying to say he didn’t.” (T. at

239). He stated that Appellant also asked him about the sort of charges he would face

and the duty to register for sex offenses. (T. at 239-40). Deputy House testified that he

felt that Appellant gave inconsistent statements in his interview from what he said initially

and then was “backtracking.” (T. at 240). Deputy House’s recorded interview with

Appellant was played for the jury. (T. at 225-240).

{¶13} Detective Brian Johnson also testified. He explained to the jury that based

on his training and experience investigating sex crimes, voyeurs typically record their

victims so that they have the recordings for future use, most likely to masturbate while

watching them. (T. at 261, 264). He stated that voyeurs typically record their victims, often

with hidden cell phones, or even cameras with vides built in and hidden behind picture

frames. (T. at 264). In cases such as this where a cell phone is set up facing a woman’s

bedroom, the voyeur is typically trying to capture the victim doing things in the privacy of

their own room and then masturbate to said images later. Id.

{¶14} Appellant testified in his own defense at trial and denied that he ever took

videos of M.P. without her knowledge. (T. at 271, 285). Appellant also stated that no other

males were in the home when he was there, and that he would know if another man was

in the house at 4:50 in the morning. (T. at 273, 282). Further, he identified his own voice

on the recordings. (T. at 273). Appellant confirmed that he told Deputy House that if he

did it that he wouldn’t remember it and wouldn’t do it in the right frame of mind; however,

he said that he was under “extreme duress during [his] interview.” (T. at 287). Stark County, Case No. 2021CA00154 5

{¶15} Following deliberations, Appellant was convicted of one count of

Voyeurism.

{¶16} The trial court sentenced Appellant to one-hundred eighty (180) days in the

Stark County Jail with all but forty-five (45) days suspended. Appellant was also placed

on two years probation and ordered to complete a sex offender program. Appellant was

also ordered to register as a Tier 1 Sexual Offender for fifteen (15) years and have no

contact with the victim.

{¶17} Appellant now appeals, raising the following errors for review:

ASSIGNMENTS OF ERROR

{¶18} “I. THE STATE FAILED TO PRESENT SUFFICIENT EVIDENCE TO

SUSTAIN A CONVICTION AGAINST THE APPELLANT, AND THE CONVICTION MUST

BE REVERSED.

{¶19} “II. THE APPELLANT'S CONVICTION WAS NOT SUPPORTED BY THE

MANIFEST WEIGHT OF THE EVIDENCE PRESENTED, AND MUST BE REVERSED.”

I., II.

{¶20} In his first and second assignments of error, Appellant argues his conviction

is not supported by the manifest weight or sufficiency of the evidence. We disagree.

{¶21} In determining whether a verdict is against the manifest weight of the

evidence, the appellate court acts as a thirteenth juror and “in reviewing the entire record,

weighs the evidence and all reasonable inferences, considers the credibility of witnesses,

and determines whether in resolving conflicts in evidence the jury ‘clearly lost its way and

created such a manifest miscarriage of justice that the conviction must be reversed and Stark County, Case No. 2021CA00154 6

a new trial ordered.’ ” State v. Thompkins, 78 Ohio St. 3d 380, 387, 1997-Ohio-52, 678

N.E.2d 541, quoting State v. Martin, 20 Ohio App. 3d 172, 175, 485 N.E.2d 717 (1983).

{¶22} On review for sufficiency, a reviewing court is to examine the evidence at

trial to determine whether such evidence, if believed, would support a conviction. State v.

Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492 (1991). "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."

Id. at paragraph two of the syllabus, following Jackson v. Virginia, 443 U.S. 307, 99 S.Ct.

2781, 61 L.Ed.2d 560 (1979).

{¶23} Appellant herein was convicted of Voyeurism, in violation of R.C.

§2907.08(B), which provides:

No 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.

{¶24} Appellant argues that the state failed to prove that he was the one who used

the cell phone to videotape M.P. or that he had done so for the purpose of sexual arousal

or gratification.

{¶25} R.C. §2901.22(A) states:

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 Stark County, Case No. 2021CA00154 7

accomplish thereby, it is the offender's specific intention to engage in

conduct of that nature.

{¶26} “Surreptitious” is defined in Black's Law Dictionary as “(Of conduct)

unauthorized and clandestine; done by stealth and without legitimate authority.” Black's

Law Dictionary, surreptitious (11th Ed. 2019).

{¶27} Upon review, we find that the state introduced legally sufficient evidence to

support Appellant’s voyeurism conviction.

{¶28} The State presented evidence that the phone with video recordings on it

was found in Appellant’s book bag, and that the phone had been hidden in a hallway

closet only used by Appellant and pointed in the direction of M.P.’s bedroom. Testimony

was also presented that no other men were in the house during the time periods when

these videos were taken. The state also presented evidence via the testimony of M.P.,

S.P. and Jennifer that the man in the video recordings was Appellant based on his voice,

his legs, his ears, etc. Further, testimony by Dep. House described Appellant’s statements

as inconsistent and backtracking. (T. at 240).

{¶29} Additionally, Det. Johnson explained that in his experience, such recordings

are made and used for the purpose of sexual gratification. (T. at 264).

{¶30} The trier of fact may infer a person's intent from the surrounding facts and

circumstances. (State v. Lott (1990), 51 Ohio St.3d 160, 168, 555 N.E.2d 293; State v.

Horrigan (Feb. 19, 1999), 2nd Dist. No. 17260).

{¶31} Courts have held that the sexual-arousal and/or gratification element may

be inferred where there is no innocent, i.e., nonsexual, explanation for the offender's

conduct. See, e.g., Huron v. Holsapple (Aug. 8, 1997), 6th Dist. No. E–96–063, 1997 WL Stark County, Case No. 2021CA00154 8

457971, at *3 (offender was caught “looking at the victim through her window during a

time in the morning when the victim, a fourteen-year-old girl, was dressing for school”);

State v. Million (1989), 63 Ohio App.3d 349, 351, 578 N.E.2d 869 (evidence that the

offender used a hand-held mirror to look into an adjacent bathroom stall would support

an inference of a purpose of sexual arousal or gratification “since innocent explanations

for his behavior do not readily come to mind”).

{¶32} Courts have also found a purpose to sexually arouse or self-gratify in cases

where a voyeur kept autoerotic materials in his car while he peered through a home's

window, (State v. Haldeman (Nov. 22, 2000), 2nd Dist. No. 18199, 2000 WL 1726858),

where a voyeur repeatedly peered through a home's window while apparently

masturbating, (State v. Gonzales (Mar. 12, 1999), 6th Dist. No. WD–98–057, 1999 WL

128580) , and where a voyeur climbed a ladder to peer through a window and watch a

young girl as she dressed for school. (Huron v. Holsapple (Aug. 8, 1997), 6th Dist. No.

E–96–063, 1997 WL 457971).

{¶33} Here, as set forth above, the state presented evidence that Appellant

videotaped M.P without her knowledge or permission when she was dressing and/or

undressing. Appellant then kept the video recordings on a secret cell phone he kept

hidden in his work bag. Given Appellant's secretive tactics and the nature of the sexually

explicit material, the trier of fact could have reasonably inferred that Appellant's acts were

done for the purpose of sexual arousal or self-gratification.

{¶34} While Appellant argues that S.P. and M.P.’s testimony was “tainted with

anger and revenge for Appellant”, the weight to be given to the evidence and the credibility

of the witnesses are issues for the trier of fact. State v. Jamison, 49 Ohio St.3d 182, 552 Stark County, Case No. 2021CA00154 9

N.E.2d 180 (1990). The trier of fact "has the best opportunity to view the demeanor,

attitude, and credibility of each witness, something that does not translate well on the

written page." Davis v. Flickinger, 77 Ohio St.3d 415, 418, 674 N.E.2d 1159 (1997). We

note circumstantial evidence is that which can be "inferred from reasonably and justifiably

connected facts." State v. Fairbanks, 32 Ohio St.2d 34, 289 N.E.2d 352 (1972), paragraph

five of the syllabus. "[C]ircumstantial evidence may be more certain, satisfying and

persuasive than direct evidence." State v. Richey, 64 Ohio St.3d 353, 1992-Ohio-44, 595

N.E.2d 915. It is to be given the same weight and deference as direct evidence. State v.

Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492 (1991).

{¶35} Accordingly, we conclude that the evidence, if believed, established that

Appellant surreptitiously invaded M.P.'s privacy by videotaping, filming, photographing,

otherwise recording, or spying or eavesdropping upon her in her own home with the use

of a cell phone for the purpose of sexually arousing or gratifying himself. We hold that the

evidence was sufficient to support Appellant's conviction for voyeurism under R.C.

§2907.08(B). Furthermore, we cannot say that the trier of fact clearly lost its way or that

it created a manifest miscarriage of justice. This is not the exceptional case where the

evidence weighs heavily against conviction Stark County, Case No. 2021CA00154 10

{¶36} Appellant’s assignments of error are overruled.

{¶37} For the reasons stated in the foregoing opinion, the judgment of the Canton

Municipal Court, Stark County, Ohio, is affirmed.

By: Wise, J.

Hoffman, P. J., and

Baldwin, J., concur.

JWW/kw 1103