State v. Shannon

2021 Ohio 789

• Court: Ohio Court of Appeals
• Decided: March 15, 2021
• Docket: 2020-T-0020
• Status: Published

Opinion

[Cite as State v. Shannon, 2021-Ohio-789.]

IN THE COURT OF APPEALS

ELEVENTH APPELLATE DISTRICT

TRUMBULL COUNTY, OHIO

STATE OF OHIO, : OPINION

Plaintiff-Appellee, : CASE NO. 2020-T-0020 - vs - :

ERIC JERMAINE SHANNON, :

Defendant-Appellant. :

Criminal Appeal from the Trumbull County Court of Common Pleas, Case No. 2019 CR 00966.

Judgment: Affirmed.

Dennis Watkins, Trumbull County Prosecutor, and Ashleigh Musick and Ryan J. Sanders, Assistant Prosecutors, Administration Building, Fourth Floor, 160 High Street, N.W., Warren, OH 44481 (For Plaintiff-Appellee).

Stephen A. Turner, Turner, May & Shepherd, 185 High Street, N.E., Warren, OH 44481 (For Defendant-Appellant).

CYNTHIA WESTCOTT RICE, J.

{¶1} Appellant, Eric Jermaine Shannon, appeals from the judgment of the

Trumbull County Court of Common Pleas, convicting him, after trial by jury, on two

counts of public indecency, felonies of the fifth degree. We affirm appellant’s

convictions.

{¶2} On October 26, 2019, an African-American male entered the North Road

Coin Laundry, in Trumbull County, Ohio, with no laundry. Barbara Hudson was working, and the man explained his mother was en route with his clothes. The man

asked Ms. Hudson for a cigarette, which she gave him, and they smoked together.

Eventually, Ms. Hudson asked the man to leave because he was merely loitering. He

requested to use the restroom before leaving. Upon exiting the bathroom, Ms. Hudson

observed the man masturbating. His actions were caught on surveillance video. Ms.

Hudson called the Warren City Police and Officer Joseph Wilson responded. Ms.

Hudson provided the officer with a statement and a physical description. Based upon

the events and the description, the officer had a hunch the male involved was appellant;

according to the officer, he was involved with other incidents where appellant was found

masturbating in public. Also, later, Ms. Hudson was able to identify the man, appellant,

in a six-person photo array. She stated she was 100 percent certain appellant was the

individual who was masturbating in the laundromat.

{¶3} Detective Nicholas Carney of the Warren City Police was assigned to

investigate the incident. The detective obtained surveillance footage depicting an

African-American male masturbating with his left hand while sitting in a chair as well as

walking around the laundromat. The detective was ultimately contacted by Lieutenant

Nicholas Timko from the Trumbull County Sheriff’s office. The lieutenant stated he was

investigating a similar incident, potentially involving the same suspect. Lt. Timko was

informed by a county employee, Kim Taylor, of an incident which occurred while on a

walk during her lunch break. On October 24, 2019, around 1:00 p.m., Ms. Taylor was

walking outside the Administrative Building in Warren, Ohio. At the corner of Harmon

and Monroe streets, she described a set of dumpsters in the parking lot behind the

Administrative building. As she passed, she was startled by an African-American male

2 exposing himself with his hand on his penis. Ms. Taylor was sure the man was not

urinating, but rather fondling himself.

{¶4} Based upon the information from both the Warren City Police and

Trumbull County Sheriff’s Office, appellant was arrested. Appellant was ultimately

indicted on two counts of public indecency, each in violation of R.C. 2907.09(A)(1) and

(C)(2), felonies of the fifth degree. Appellant pleaded not guilty and a jury trial

commenced. After deliberating, the jury convicted appellant on both charges. Appellant

was sentenced to a term of incarceration of 12 months on both counts and the trial court

ordered the terms to be served consecutively. He now appeals and assigns three

errors for our review. His first provides:

{¶5} “The imposed prison sentence was disproportionate and excessive for the

purposes set forth in Revised Code Sec. 2929.11(A) and not necessary to protect the

public.”

{¶6} Although appellant challenges the trial court’s imposition of an aggregate

term of 24 months, he does not claim the trial court failed to comport with R.C.

2929.14(C)(4), the statute governing a court’s imposition of consecutive, felony

sentences. Appellant asserts the trial court erred in sentencing him to an aggregate

term of 24 months because its order was premised purely upon his prior convictions for

public indecency. In particular, appellant contends that because R.C. 2907.09 includes

a “built-in progression of increasing penalties based upon prior convictions” that it was

error for the trial court to solely base his sentence upon this singular factor.

{¶7} Initially, appellant cites R.C. 2953.08(G) as our standard of review relating

to felony sentencing. While that statute applies to sentences issued under specific

statutes (R.C. 2929.13(B) or (D), R.C. 2929.14(B)(2)(e) or (C)(4), or R.C. 2929.20(I)),

3 appellant does not challenge his sentence vis-à-vis on any of these grounds. Instead,

he claims the duration of the individual sentences, run consecutively, runs afoul of

principles and purposes of Ohio’s felony sentencing statutes as defined under R.C.

2929.11. As such, the standard under R.C. 2953.08(G) is inapplicable to this matter.

{¶8} Previously, when reviewing sentencing challenges relating to the factors

set forth under R.C. 2929.11 and R.C. 2929.12, this court followed the Supreme Court

of Ohio’s language in State v. Marcum, 146 Ohio St.3d 516, 2016-Ohio-1002, stating

that:

{¶9} [I]t is fully consistent for appellate courts to review those sentences that are imposed solely after consideration of the factors in R.C. 2929.11 and 2929.12 under a standard that is equally deferential to the sentencing court. That is, an appellate court may vacate or modify any sentence that is not clearly and convincingly contrary to law only if the appellate court finds by clear and convincing evidence that the record does not support the sentence. Marcum, supra, at ¶23.

{¶10} Recently, however, in State v. Jones, Ohio Slip Opinion No. 2020-Ohio-

6729, the Ohio Supreme Court concluded that the foregoing language in Marcum was

dicta. Id. at ¶27. In Jones, the court held that “R.C. 2953.08(G)(2)(b) * * * does not

provide a basis for an appellate court to modify or vacate a sentence based on its view

that the sentence is not supported by the record under R.C. 2929.11 and 2929.12.” Id.

at ¶39. In so holding, the Supreme Court explained that “an appellate court’s

determination that the record does not support a sentence does not equate to a

determination that the sentence is ‘otherwise contrary to law’ as that term is used

in R.C. 2953.08(G)(2)(b).” Jones, supra, at ¶32. Therefore, under Jones, an appellate

court errs if it relies on the dicta in Marcum and modifies or vacates a sentence “based

4 on the lack of support in the record for the trial court's findings under R.C.

2929.11 and R.C. 2929.12.” Id. at ¶29.

{¶11} Accordingly, under Jones, when reviewing felony sentences that are

imposed solely after considering the factors in R.C. 2929.11 and R.C. 2929.12, we shall

no longer evaluate whether those sentences are unsupported by the record. Instead, we

must simply analyze whether those sentences are contrary to law. “A sentence is

contrary to law when it does not fall within the statutory range for the offense or if the

trial court fails to consider the purposes and principles of felony sentencing set forth

in R.C. 2929.11 and the sentencing factors set forth in R.C. 2929.12.” (Citation

omitted.) State v. Brown, 2d Dist. Montgomery Nos. 24520, 24705, 2012-Ohio-199,

¶74; see also State v. Wilson, 11th Dist. Lake No. 2017-L-028, 2017-Ohio-7127, ¶18.

{¶12} Appellant’s argument essentially asserts that the record does not support

the harshness of his sentence. As just pointed out, however, we cannot assess

whether, under R.C. 2929.11, his sentence was unsupported by the record. We must

simply look to whether it was within the statutory range (it was), and whether the trial

court considered the purposes and principles of felony sentencing (it did).

{¶13} At the sentencing hearing, the trial court stated it had reviewed appellant’s

record, both adult and juvenile. It noted his first offense was aggravated robbery, an

offense of violence, with a firearm for which he served four years in prison. Appellant

then violated his parole. The court then pointed out appellant had a public indecency

conviction in 2016; four public indecency convictions in 2017; an assault conviction in

2017; a criminal trespass in 2017; a public indecency in 2018; a criminal trespass in

2018; and a petty theft in 2019. The court went on to state:

5 {¶14} [W]hat troubles me is your inability to control yourself. We know that you’re capable of violence because you were sent to prison on an offense of violence, the aggravated robbery. We know about the prior convictions that were even part of your indictment. I also saw the witnesses on the witness stand, the two victims, and the one in particular was shaking in her shoes.

{¶15} You are incapable of staying out of trouble. Absolutely incapable. The only time you’re not doing this in public is when you’re not in public. And the only time you’re not in public is when you’re incarcerated.

{¶16} The court went on to sentence appellant to a term of 12 months on each

count and, after addressing the R.C. 2929.14(C)(4) factors, ran the two terms

consecutive to one another.

{¶17} This court has often noted that even though a trial court is required to

consider the R.C. 2929.11 and R.C. 2929.12 factors, it is not required to make specific

findings on the record to comport with its statutory obligations. See State v. Parke, 11th

Dist. Ashtabula No. 2011-A-0062, 2012-Ohio-2003, ¶24; State v. Blake, 11th Dist. Lake

No. 2003-L-196, 2005-Ohio-686, ¶16. Here, at the sentencing hearing, the trial court

alluded to appellant’s record and his inveterate pattern of criminal conduct. The court

placed particular emphasis on appellant’s inability to refrain from engaging in the crime

of public indecency, commenting: “And I, like the prosecutor, feel the same way. When

you’re out, it’s out.” These observations demonstrate that the court was guided by the

overriding purposes of felony sentencing in crafting its sentence; namely, protecting the

public from future crime by the appellant and punishing him using the minimum sanction

that will accomplish these purposes. And, in its judgment entry, the court stated it “has

considered the record, oral statements, pre-sentence investigation report and any victim

impact statement, as well as the principles and purposes of sentencing under O.R.C.

6 Section 2929.11, and has balanced the seriousness and recidivism factors of O.R.C.

Section 2929.12.” We therefore hold the trial court’s sentence was not contrary to law.

{¶18} Appellant’s first assignment of error lacks merit.

{¶19} Appellant’s second and third assignments of error shall be addressed

together. They provide:

{¶20} “[2.] the state failed to produce evidence that was legally sufficient to

sustain the verdict as to count one that appellant committed public indecency.

{¶21} “[3.] The state failed to produce evidence that was legally sufficient to

sustain the verdict as to count two that appellant committed public indecency.

{¶22} A “sufficiency” argument raises a question of law as to whether the

prosecution offered some evidence concerning each element of the charged

offense. State v. Windle, 11th Dist. Lake No. 2010-L-0033, 2011-Ohio-4171, ¶25. “[T]he

proper inquiry is, after viewing the evidence most favorably to the prosecution, whether

the jury could have found the essential elements of the crime proven beyond a

reasonable doubt.” State v. Troisi, 179 Ohio App.3d 326, 2008-Ohio-6062, ¶9

(11th Dist.). “Sufficiency of the evidence tests the burden of production.” State v. Rice,

11th Dist. Lake Nos. 2018-L-065 and 2018-L-066, 2019-Ohio-1415, ¶65.

{¶23} In contrast, a court reviewing the manifest weight observes the entire

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

the witnesses and determines whether, in resolving conflicts in the evidence, the jury

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. Schlee, 11th Dist. Lake No. 93-L-

082, 1994 WL 738452, *4-5 (Dec. 23, 1994). A challenge to the weight of the evidence

7 requires a court to consider whether the state met its burden of persuasion. State v.

McFeely, 11th Dist. Ashtabula No. 2008-A-0067, 2009-Ohio-1436, ¶78.

{¶24} Appellant was convicted of two counts of public indecency, in violation of

R.C. 2907.09(A)(1) and (C)(1), which provide:

{¶25} (A) No person shall recklessly do any of the following, 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:

{¶26} (1) Expose the person’s private parts;

{¶27} * * *

{¶28} (C)(2) * * * If the offender previously has been convicted of or pleaded

guilty to three or more violations of this section, a violation of division (A)(1) of this

section is a misdemeanor of the first degree or, if any person who was likely to view and

be affronted by the offender’s conduct was a minor, a felony of the fifth degree.

{¶29} Under assigned errors two and three, appellant asserts the evidence

presented at trial was insufficient to support the reasonable inference that a minor would

have likely seen and been affronted by his conduct. Appellant places great emphasis

on the term “likely,” asserting the word denotes a “high probability of occurring.”

Although appellant limits his challenge, we shall address each element of the crimes in

interest of a comprehensive analysis.

{¶30} Here, appellant admitted he was the individual between the dumpsters

(count one); he testified, however, he was simply urinating and, given his positioning,

was not likely to be viewed by any passers-by, let alone children. Ms. Taylor testified,

however, that as she walked by appellant’s location, he was exposing himself and

8 fondling his penis. She additionally testified it did not appear he was urinating given the

direction he was facing (the sidewalk where anyone could see) and she did not detect

urine coming from or near appellant. She further testified that, across the street is a

school or a preschool, a women’s shelter, and a Planned Parenthood. Ms. Taylor

added that, during her walks, she has occasion to see children near the area the

incident took place and she also sees school buses in the vicinity.

{¶31} Regarding count two, the laundromat incident, Ms. Hudson testified that

she spoke with appellant, smoked a cigarette with him, observed him for approximately

45 minutes, and permitted him to use the restroom. She then testified she witnessed

him masturbating in the facility. She selected him out of a photo line-up and stated she

was 100 percent certain he was the individual she observed masturbating. She

additionally echoed her certainty when identifying appellant in court. Finally, she

testified children are in the laundromat on a daily basis; due to the relative prevalence of

children, the facility has a location where children can play while parents do laundry.

{¶32} With the foregoing in mind, the state adduced sufficient evidence that

appellant, at the very least, recklessly exposed his private parts such that it was likely to

be viewed by others in his physical proximity. With regard to the likelihood of a minor

viewing the same, we conclude the state also satisfied its burden of production.

{¶33} In State v. Benner, 40 Ohio St.3d 301, 313 (1988) (abrogated on other

grounds by Horton v. California, 496 U.S. 128 (1990)) the Supreme Court equated the

term “likely” with the term “probable” and stated:

{¶34} According to the Oxford English Dictionary, ‘probable’ means ‘[h]aving an appearance of truth; that may in view of present evidence be reasonably expected to happen, or to prove true; likely.’ VIII Oxford English Dictionary (1933) 1401, definition 3. ‘Likely’ is defined as follows: ‘Having an appearance of truth or fact;

9 that looks as if it would * * * prove to be what is alleged or suggested; probable.’ VI Oxford English Dictionary (1933) 288, definition 2.

{¶35} According to Black’s Law Dictionary, “likelihood” means “[p]robability” and “imports something less than reasonably certain.” Black’s Law Dictionary (5 Ed.1979) 834, citing Clark v. Welch (C.A.1, 1944), 140 F.2d 271, 273. “Likely” means “[p]robable” or “[i]n all probability.” Id., citing Horning v. Gerlach (1934), 139 Cal.App. 470, 34 P.2d 504, 505. See, also, Webster’s Third New International Dictionary (1971) 1310 and 1806.

{¶36} Moreover, “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).

{¶37} In light of the foregoing, we hold 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. Thus, there was sufficient evidence

introduced at trial to meet the state’s burden on this element of the crime of public

indecency, elevating the same to a felony of the fifth degree.

{¶38} Appellant’s second and third assignments of error lack merit.

{¶39} Appellant’s fourth assignment of error contends:

{¶40} “[4.] The jury’s verdict of guilt as to count one of public indecency was

against the manifest weight of the evidence.”

{¶41} Under his fourth assignment of error, appellant argues his conviction on

count one (the dumpster incident) was against the manifest weight of the evidence

because the jury lost its way in concluding he was not, as he testified, simply urinating.

He points out that a comment to the statute from the Legislative Service Commission

10 creates an ostensible exception to the crime where one is merely “[a]nswering an urgent

call of nature alfresco.”

{¶42} While appellant insists he was merely “answering an urgent call of nature,”

Ms. Taylor testified she witnessed appellant exposing himself to her and fondling his

penis. When asked whether appellant was relieving himself, she firmly responded he

was not. Ms. Taylor pointed out she observed no urine issuing from appellant’s private

part and, because he was facing the sidewalk, she opined appellant’s claim was

unlikely, i.e, if one is urinating in public, one, in her view, would not face the direction

where on-lookers could observe the action.

{¶43} The jury, as the trier of fact, is entitled to believe all, part, or none of a

witness’s testimony. State v. Williams, 11th Dist. Lake No. 2012-L-078, 2013-Ohio-

2040, ¶21 (citation omitted). “The trier of fact is in the best position to evaluate

inconsistencies in testimony by observing the witness’s manner and demeanor on the

witness stand - attributes impossible to glean through a printed record.” Id.

{¶44} In light of the evidence, we decline to conclude the jury lost its way in

convicting appellant on count one. We therefore hold that conviction is consistent with

the weight of the evidence.

{¶45} Appellant’s final assignment of error is without merit.

{¶46} For the reasons discussed in this opinion, the judgment of the Trumbull

County Court of Common Pleas is affirmed.

MARY JANE TRAPP, P.J.,

THOMAS R. WRIGHT, J.,

concur.