State v. McKinney

2021 Ohio 3870

Opinion

[Cite as State v. McKinney, 2021-Ohio-3870.]

IN THE COURT OF APPEALS

TWELFTH APPELLATE DISTRICT OF OHIO

BUTLER COUNTY

STATE OF OHIO, :

Appellee, : CASE NO. CA2021-03-029

: OPINION - vs - 11/1/2021 :

GARY W. McKINNEY, :

Appellant. :

CRIMINAL APPEAL FROM MIDDLETOWN MUNICIPAL COURT Case No. CRB2003253 A.B.

Ashley Bretland, City of Middletown Prosecuting Attorney, and Zachary A. Barnhart, Staff Attorney, for appellee.

Michele Temmel, for appellant.

S. POWELL, P.J.

{¶ 1} Appellant, Gary W. McKinney, appeals his conviction in the Middletown

Municipal Court after he was found guilty of second-degree misdemeanor public indecency

and fourth-degree misdemeanor disorderly conduct. For the reasons outlined below, we

affirm McKinney's conviction for both offenses.

{¶ 2} On December 8, 2020, McKinney was arrested and jailed on charges of public Butler CA2021-03-029

indecency in violation of R.C. 2907.09(A)(1), a second-degree misdemeanor in accordance

with R.C. 2907.09(C)(2), and disorderly conduct in violation of R.C. 2917.11(A)(2), a fourth-

degree misdemeanor in accordance with R.C. 2917.11(E).

{¶ 3} As alleged in the complaint, the charges arose after McKinney was observed

by numerous passersby standing outside on the 900 block of West State Street in Trenton

"exposing his private parts and yelling at passing cars." The complaint alleges that Officer

Matthew Rutherford with the Trenton Police Department subsequently arrived at the scene

and located McKinney near the "fog line on the roadway" with "his pants at his ankles and

he was pelvic thrusting towards the roadway." The complaint also alleges that a witness to

McKinney's pelvic thrusting, B.W., stopped and provided Officer Rutherford with a written

statement that she had seen McKinney "pull his penis out of his pants and shake it around

towards the public."

{¶ 4} On January 13, 2021, McKinney was released from jail on bond. Two weeks

later, on January 27, 2021, the matter was tried to the bench. During trial, the trial court

heard testimony from two witnesses: B.W. and Officer Rutherford. The following is a

summary of the testimony offered by those two witnesses.

{¶ 5} B.W. testified that she went to a Little Ceasars pizzeria located in Trenton to

pick up a pizza on December 8, 2020 somewhere between 6:30 p.m. and 7:00 p.m. B.W.

testified that upon pulling her vehicle up to the Little Ceasars she saw something unusual;

McKinney standing approximately five or six feet away from Little Ceasars' front door with

his "pants down, but his boxers were up." B.W. testified that upon seeing McKinney with

his pants down, "hootin' and hollerin' pretty loudly" and acting "belligerent," B.W. decided to

stay in her vehicle in hopes that McKinney would soon leave. B.W. testified that she then

watched as McKinney removed his hat and "put it over" his "penis area" and began "shaking

it up and down." B.W. testified that she also saw McKinney pull his pants down, expose his

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private parts, and touch his penis "with his hat in his hand." B.W. testified that McKinney

did this "several times" as he danced around the well-lit Little Ceasars' parking lot on that

"chilly," "really cool" evening. B.W. testified that this included the two times she "very briefly"

saw McKinney's exposed penis.

{¶ 6} Officer Rutherford testified that he was working as a patrolman on the evening

of December 8, 2020. Officer Rutherford testified that while on patrol he was dispatched to

a "little strip mall" located on the 900 block of West State Street after the Trenton Police

Department received a report "of a gentleman exposing himself." Officer Rutherford

testified that upon arriving at the scene he located McKinney "standing on the side of the

road facing the roadway" nearby to an Auto Zone store with his "pants around his ankles

pelvic thrusting towards traffic." Officer Rutherford testified McKinney was at that time

approximately 300 feet from the Little Ceasars pizzeria where B.W. had seen McKinney

expose his penis.

{¶ 7} Officer Rutherford testified that he then contacted McKinney who told him his

"pants were around his ankles because he didn't have a belt." Officer Rutherford testified

that he then detained McKinney and placed McKinney in the back of his police cruiser.

Officer Rutherford testified once McKinney was in the back of his police cruiser that

McKinney stated, "Let's see what the man has to decide about my dick swingin' tonight."

Officer Rutherford testified that McKinney then laughed and stated, "I fuckin' love this shit."

McKinney's statements were recorded by Officer Rutherford's cruiser camera microphone

and played during trial without objection.

{¶ 8} After both parties rested, the trial court issued a verdict finding McKinney

guilty of both second-degree misdemeanor public indecency and fourth-degree

misdemeanor disorderly conduct. Explaining its verdict, the trial court initially noted that it

had found B.W.'s testimony "very credible." This includes B.W.'s testimony that she had

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twice seen McKinney expose his penis outside of the Little Ceasars pizzeria. The trial court

then stated its findings as to whether a minor would have "likely" viewed and been affronted

by McKinney's conduct :

Regarding the uh evidence of uh whether or not children would be likely to be present. It's a public pizza parlor at 6:30 at night on a on a [sic] well whatever weekend or a weeknight it doesn't matter. And he's standing a[t] least at uh that point I think she said five (5) to six (6) feet away from the front door of Little Ceasars. Very easily, very likely could've been a child present at that and that could've observed that. So, the Court's gonna make a finding of guilty.

{¶ 9} After announcing its verdict, the trial court then proceeded immediately to

sentencing and sentenced McKinney on the second-degree misdemeanor public indecency

charge to 90 days in jail, with 54 days suspended, and credited McKinney with 36 days of

jail-time credit. The trial court also fined McKinney $100 and ordered McKinney to pay court

costs. The trial court then sentenced McKinney on the fourth-degree misdemeanor

disorderly conduct charge to 30 days in jail, with all 30 days suspended, consecutive to the

90-day jail sentence imposed on the second-degree misdemeanor public indecency charge.

McKinney now appeals his conviction, raising two assignments of error for review. For ease

of discussion, we will address McKinney's two assignments of error out of order.

{¶ 10} Assignment of Error No. 2:

{¶ 11} THE TRIAL COURT ERRED BY NOT DISMISSING THE DEFENDANT'S

CHARGES BASED ON A SPEEDY TRIAL VIOLATION.

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

not dismissing both charges levied against him based on a violation of his statutory right to

a speedy trial. We disagree.

{¶ 13} Pursuant to R.C. 2945.71(B)(2), a person charged with a second-degree

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misdemeanor must be brought to trial within 90 days after the date of his or her arrest.1

However, in accordance with R.C. 2945.71(E), "when an accused is held in jail on the

pending charge in lieu of bail, each day is counted as three days." State v. March, 12th

Dist. Butler No. CA2015-08-070, 2016-Ohio-3288, ¶ 14. Therefore, rather than 90 days, an

incarcerated defendant charged with a second-degree misdemeanor must be brought to

trial within 30 days after his or her arrest. See, e.g., Toledo v. Phillips, 6th Dist. Lucas No.

L-14-1016, 2015-Ohio-3484, ¶ 12 ("[a]ppellant was arrested on December 3, 2013, and

remained in custody until the day of trial. Accordingly, the three-for-one provision of R.C.

2945.71 required that appellant be brought to trial within 30 days of his arrest"). This

timeline may be extended, however, for the reasons set forth in R.C. 2945.72. State v.

Blauvelt, 12th Dist. Butler No. CA2007-01-034, 2007-Ohio-5897, ¶ 14. This includes "[t]he

period of any continuance granted on the accused's own motion, and the period of any

reasonable continuance granted other than upon the accused's own motion[.]" R.C.

2945.72(H).

{¶ 14} There is no dispute that McKinney was arrested and jailed on December 8,

2020, that McKinney was subsequently released on bond on January 13, 2021, and that

McKinney's trial was thereafter held on January 27, 2021. Applying the three-for-one

provision found in R.C. 2945.71(E), this means that McKinney was not brought to trial until

119 days after his arrest, 29 days over the requisite 90-day time period set forth in R.C.

2945.71(B)(2).2 (35 days in jail x 3 = 105 + 14 days on bond = 119 total days.) Because

1. Because McKinney was charged with two misdemeanor offenses arising out of the same act or transaction, R.C. 2945.71(D) required McKinney to be brought to trial "within the time period required for the highest degree of offense charged," i.e., the offense charging McKinney with second-degree misdemeanor public indecency.

2. We note that although McKinney was arrested on December 8, 2020, "[t]he day of arrest does not count towards speedy trial time." State v. Midgett, 5th Dist. Richland No. 2020 CA 0058, 2021-Ohio-2317, ¶ 52; see, e.g., State v. Messer, 12th Dist. Clermont No. CA2006-10-084, 2007-Ohio-5899, ¶ 20 ("[a]ppellant was arrested on December 15, 2004. This day of arrest is not included in computing speedy trial time"). -5- Butler CA2021-03-029

McKinney was not brought to trial until after the requisite time period expired, McKinney

was able to establish a prima facie case for dismissal based on violation of his statutory

right to a speedy trial. See State v. Thacker, 12th Dist. Warren No. CA2019-06-058, 2020-

Ohio-1318, ¶ 26 ("[o]nce a defendant demonstrates he was not brought to trial within the

permissible time period, the accused presents a prima facie case for dismissal based on a

speedy-trial violation"). The burden, therefore, was on the state to prove that time was

sufficiently tolled and the speedy-trial time period extended under R.C. 2945.72. State v.

Binks, 12th Dist. Butler No. CA2017-08-018, 2018-Ohio-1570, ¶ 24 (once a defendant

presents a primia facie case for dismissal based on a speedy-trial violation "[t]he burden

then shifts to the state to prove that time was sufficiently tolled and the speedy-trial time

period extended").

{¶ 15} To support this assignment of error, McKinney argues the trial court "totally

disregard[ed]" the statutory mandates requiring him to be brought to trial within 90 days

after being booked into jail, thus constituting a clear violation of his statutory speedy trial

rights set forth in R.C. 2945.71(B)(2). However, as the record indicates, the trial court

determined that it was necessary for McKinney's trial be continued on two separate

occasions, once on December 30, 2020 and again on January 13, 2021, in order to ensure

B.W.'s presence at trial. After a thorough review of the record, we find these two 14-day

continuances were reasonable and tolled the statutory time period to bring McKinney to trial

given the first continuance was issued by the trial court after B.W.'s employer would not

permit her to leave work to testify, with the second continuance being issued by the trial

court after B.W. reported she was unable to testify because she was showing symptoms of

COVID-19.

{¶ 16} In so holding, we note the well-settled principle that the unavailability of a key

prosecution witness, such as B.W., is a reasonable ground for granting a continuance

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pursuant to R.C. 2945.72(H). State v. Nelson, 12th Dist. Clinton No. CA2007-11-046, 2009-

Ohio-555, ¶ 25, citing State v. Mitchell, 7th Dist. Mahoning No. 06-MA-169, 2008-Ohio-645,

¶ 34 ("[t]he unavailability of a material witness, specifically the store clerk and victim as to

the aggravated robbery count, Kathy Abbott, was also a necessary reason to delay trial");

State v. Constable, 12th Dist. Clermont No. CA2006-12-107, 2007-Ohio-6570, ¶ 15-16 (the

trial court's grant of a continuance to the state when its key witness was unavailable was

reasonable and tolled the statutory time period to bring appellant to trial). Therefore,

because we find no error in the trial court's decision finding time was sufficiently tolled and

the statutory speedy-trial time period extended under R.C. 2945.72(H) to ensure B.W.'s

presence at trial, McKinney's claim alleging a violation of his statutory right to a speedy trial

lacks merit. This is because McKinney was brought to trial 63 days after his arrest (21 days

in jail prior to first continuance being issued; 21 x 3 = 63), and not 119 days as alleged by

McKinney. Accordingly, McKinney's second assignment of error lacks merit and is

overruled.

{¶ 17} Assignment of Error No. 1:

{¶ 18} THE EVIDENCE WAS INSUFFICIENT TO SUPPORT APPELLANT'S

CONVICTION FOR PUBLIC INDECENCY AND THE JUDGMENT OF GUILTY WAS

AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.

{¶ 19} In his first assignment of error, McKinney argues his conviction for second-

degree misdemeanor public indecency was not supported by sufficient evidence and was

against the manifest weight of the evidence.3 We disagree.

{¶ 20} Whether the evidence presented was legally sufficient to sustain a verdict is

3. We note that in this assignment of error McKinney does not challenge his conviction for fourth-degree misdemeanor disorderly conduct, thereby conceding that his conviction for that offense was proven beyond a reasonable doubt. -7- Butler CA2021-03-029

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. Tenbrook, 12th Dist. Butler No. CA2020-01-005, 2020-Ohio-5227, ¶ 9, citing 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. Moore, 12th Dist. Fayette No. CA2020-09-016, 2021-Ohio-

1856, ¶ 12, quoting 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. "[A] reversal

based on insufficient evidence leads to an acquittal that bars a retrial." State v. Gideon,

Slip Opinion No. 2020-Ohio-6961, ¶ 27.

{¶ 21} Unlike a challenge to the sufficiency of the evidence, a manifest weight of the

evidence challenge examines the "inclination of the greater amount of credible evidence,

offered at a trial, to support one side of the issue rather than the other." State v. Barnett,

12th Dist. Butler No. CA2011-09-177, 2012-Ohio-2372, ¶ 14, citing State v. Wilson, 12th

Dist. Warren No. CA2006-01-007, 2007-Ohio-2298, ¶ 34. "To determine whether a

conviction is against the manifest weight of the evidence, the reviewing court must look at

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

of the witnesses, and determine whether in resolving the 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. Morgan, 12th Dist. Butler

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Nos. CA2013-08-146 and CA2013-08-147, 2014-Ohio-2472, ¶ 34, citing State v. Graham,

12th Dist. Warren No. CA2008-07-095, 2009-Ohio-2814, ¶ 66. But, even then, the

determination of witness credibility is primarily for the trier of fact to decide. State v. Baker,

12th Dist. Butler No. CA2019-08-146, 2020-Ohio-2882, ¶ 30, citing State v. DeHass, 10

Ohio St.2d 230 (1967), paragraph one of the syllabus. This court "will overturn a conviction

due to the manifest weight of the evidence only in extraordinary circumstances when the

evidence presented at trial weighs heavily in favor of acquittal." State v. Kaufhold, 12th

Dist. Butler No. CA2019-09-148, 2020-Ohio-3835, ¶ 10, citing State v. Blair, 12th Dist.

Butler No. CA2014-01-023, 2015-Ohio-818, ¶ 43.

{¶ 22} As noted above, McKinney was convicted of public indecency in violation of

R.C. 2907.09(A)(1), a second-degree misdemeanor in accordance with R.C. 2907.09(C)(2).

When read together, these statutes required the state to prove McKinney recklessly

exposed his "private parts" under circumstances when a minor would have "likely" viewed

and been affronted by his conduct. The Ohio Revised Code "does not specifically define

the term 'private parts.'" State v. Mackie, 12th Dist. Warren No. CA2010-08-080, 2011-

Ohio-2102, ¶ 20. The Ohio Jury Instructions manual nevertheless defines the term to mean

"genitals." State v. Jetter, 74 Ohio App.3d 535, 536, fn. 1 (1st Dist.1991), citing 4 Ohio Jury

Instructions (1991), Section 507.09. This would include McKinney's penis. State v. Sparks,

12th Dist. Butler No. CA2018-11-226, 2019-Ohio-3145, ¶ 8 (noting that appellant's penis

was considered part of his "private parts" under the public indecency statute).

{¶ 23} The term "likely" has been equated with the term "probable." See State v.

Benner, 40 Ohio St.3d 301, 313 (1988) (noting that Black's Law Dictionary defined the term

"likely" to mean "[p]robable" or "[i]n all probability"). "[A] person is likely to be present when

a consideration of all the circumstances would seem to justify a logical expectation that a

person could be present." State v. Green, 18 Ohio App.3d 69, 72 (10th Dist.1984).

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Therefore, based on the facts of this case, a minor was "likely" to have viewed and been

affronted by McKinney's conduct if there was "a probability or a logical expectation that a

minor could be present" when McKinney exposed his "private parts," i.e., his penis, to the

public. See, e.g., State v. Shannon, 11th Dist. Trumbull No. 2020-T-0020, 2021-Ohio-789,

¶ 37 ("the state produced sufficient evidence of a probability or a logical expectation that a

minor could be present when appellant exposed his private parts betwixt dumpsters in the

city of Warren near a school and in a laundromat frequented by adults with children").

{¶ 24} McKinney argues the state failed to present any evidence to indicate a minor

was likely to have viewed his private parts during the "very brief time" when his penis was

exposed to the public. To support this claim, McKinney notes that there was no evidence

that any children were seen in the area where he exposed his penis, nor were there any

minivans parked in the parking lot nearby to where his penis was exposed. McKinney also

supports this claim by noting that he exposed his penis during a time when "COVID

restrictions" were in place, thereby making it unlikely that any minor would have viewed his

penis "because the children were at home obeying COVID restrictions." McKinney further

supports this claim by arguing that where he exposed his penis, i.e., five or six feet away

from the front of a Little Ceasars pizzeria, was not the equivalent of a park, a school, or a

Chuck E. Cheese restaurant, where it would be more likely that a minor would be present.

This is in addition to McKinney noting that there was only one witness, B.W., who testified

that she ever saw his penis and that her testimony indicated "she saw his penis twice and

it happened very quickly."

{¶ 25} Despite McKinney's claims, however, we find the record contains extensive

evidence to prove McKinney recklessly exposed his "private parts" when a minor would

have "likely" viewed and been affronted by his conduct. As the record indicates, McKinney

was seen between 6:30 p.m. and 7:00 p.m. on the evening of December 8, 2020 "hootin'

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and hollerin' pretty loudly," acting "belligerent," and "pelvic thrusting" with his pants down

around his ankles and his private parts exposed while standing approximately 5 to 6 feet

away from the front of a Little Ceasars pizzeria located in a "little strip mall" on the 900 block

of West State Street in Trenton. The record also indicates that on several occasions

McKinney pulled his pants down and touched his penis "with his hat in his hand" as he

danced around the well-lit Little Ceasars' parking lot on that "chilly," "really cool" evening.

{¶ 26} The record further indicates that the 900 block of West State Street where

McKinney had his pants pulled down and his penis exposed was a relatively busy street

that evening with numerous vehicles passing by as McKinney stood "on the side of the road

facing the roadway" with his "pants around his ankles pelvic thrusting towards traffic."

Therefore, while we may agree that the state did not present any evidence that a minor was

actually present when McKinney exposed his penis to the public, the state did provide

extensive evidence indicating there was a probability or a logical expectation that a minor

could be present when McKinney exposed his private parts that evening. Accordingly,

because we find McKinney's conviction for second-degree misdemeanor public indecency

was supported by sufficient evidence and was not against the manifest weight of the

evidence, McKinney's first assignment of error is also overruled.

{¶ 27} Judgment affirmed.

HENDRICKSON and BYRNE, JJ., concur.

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