State v. Yoho

2024 Ohio 1725

• Court: Ohio Court of Appeals
• Decided: May 6, 2024
• Docket: 22AP0059
• Status: Published

Opinion

[Cite as State v. Yoho, 2024-Ohio-1725.]

STATE OF OHIO ) IN THE COURT OF APPEALS )ss: NINTH JUDICIAL DISTRICT COUNTY OF WAYNE )

STATE OF OHIO C.A. No. 22AP0059

Appellee

v. APPEAL FROM JUDGMENT ENTERED IN THE JASON YOHO WAYNE COUNTY MUNICIPAL COURT COUNTY OF WAYNE, OHIO Appellant CASE No. 2022 CR-B 000981

DECISION AND JOURNAL ENTRY

Dated: May 6, 2024

FLAGG LANZINGER, Judge.

{¶1} Defendant-Appellant, Jason Yoho, appeals from the judgment of the Wayne

County Municipal Court. This Court affirms.

I.

{¶2} Yoho approached two girls in his car. The girls were sisters and were horseback

riding along a road near their home. The oldest sister was sixteen years old. The younger sister

was twelve years old. Yoho spoke with the younger sister first. He asked her where to find Apple

Creek. When she said she did not know, he drove forward several feet and spoke with the older

sister. He also asked her where to find Apple Creek. Yoho repeatedly asked the older sister the

same question even though she answered him. As he spoke with her, the older sister saw that

Yoho was not wearing any pants or underwear. She also saw him touching his penis.

{¶3} Yoho drove forward and parked in a nearby driveway. Disturbed by his behavior,

the older sister called her father. The father was riding his motorcycle in the area. He quickly 2

appeared and drove toward his daughters. As he did so, Yoho drove away. The older sister was

able to quickly tell her father what had happened. The father then chased after Yoho on his

motorcycle. He briefly spoke with Yoho and was able to take a picture of his license plate. The

father and his daughters reported the incident to the police.

{¶4} Yoho was charged with two counts of public indecency in violation of R.C.

2907.09(B)(4). A jury found him guilty on both counts. The trial court sentenced him to 180 days

in jail, a period of community control, and a fine. The court also classified him as a tier I sex

offender.

{¶5} Yoho now appeals from his convictions. He raises four assignments of error for

review.

II.

ASSIGNMENT OF ERROR I

MR. YOHO’S CONVICTION WAS BASED ON INSUFFICIENT EVIDENCE[.]

{¶6} In his first assignment of error, Yoho argues his convictions are based on

insufficient evidence. We disagree.

{¶7} Whether a conviction is supported by sufficient evidence is a question of law, which

we review de novo. State v. Thompkins, 78 Ohio St.3d 380, 386 (1997). In carrying out this

review, our “function * * * is to examine the evidence admitted at trial to determine whether such

evidence, if believed, would convince the average mind of the defendant’s guilt beyond a

reasonable doubt.” State v. Jenks, 61 Ohio St.3d 259 (1991), paragraph two of the syllabus. “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. 3

{¶8} Relevant to this appeal, R.C. 2907.09(B)(4) forbids any person in the physical

proximity of a minor from knowingly exposing his private parts to the minor “with the purpose of

personal sexual arousal or gratification” when his conduct “is likely to be viewed by and affront”

the minor. Whoever commits the foregoing offense is guilty of public indecency. R.C.

2907.09(C)(1).

{¶9} The younger sister testified that this incident occurred while she and her older sister

were horseback riding along a road near their home. The younger sister was twelve years old. She

was riding on a pony behind her older sister. As they were riding along the side of the road, a red

car passed them from the front. The younger sister testified that the car stopped some distance

behind them, turned around, and drove back toward them. When the car reached her, its male

driver stopped and spoke with her through the passenger window. The driver asked the younger

sister where Apple Creek was. When she said she did not know, the man drove forward several

feet to speak with the older sister.

{¶10} The older sister confirmed that she and her sister were horseback riding when this

incident occurred. The older sister was sixteen years old. She was riding on a horse ahead of her

younger sister. She testified that the driver briefly spoke with the younger sister before pulling

forward, stopping, and speaking to her. The older sister testified that the driver asked her where

Apple Creek was. Even though she told him where to find it, the driver asked her the same question

multiple times. Each time, the older sister answered the driver’s question.

{¶11} The older sister testified that her horse was taller than the younger sister’s pony.

Her heightened view from the horse allowed her to see inside the driver’s car. She noted the driver

was not wearing any pants or underwear. She testified that, as the driver asked her questions, she 4

saw him masturbating. The older sister specified that she could see the driver’s penis and saw him

touching himself while asking her questions. While testifying, she identified Yoho as the driver.

{¶12} Both the younger sister and the older sister testified that, during this incident, their

father was riding his motorcycle in the area. When Yoho finished speaking with the older sister,

he drove forward and parked his car in a driveway in front of the sisters. The older sister testified

that he remained there for about 20 seconds. The older sister took that opportunity to call her

father on her cell phone. As her father appeared at a distance down the road behind the younger

sister, Yoho reversed his car, drove past the sisters, and drove past their father. The father reached

the sisters on his motorcycle, and the older sister told him what had happened. The father then set

off in pursuit of Yoho’s car.

{¶13} The father testified that, for safety reasons, he routinely rode his motorcycle in the

area whenever his daughters went horseback riding. He testified that he was not able to hear the

cell phone call the older sister made due to road noise. As he approached his daughters at a

distance, however, he saw the older sister hold up her cell phone to him. The father immediately

drove over to his daughters. He testified that a car passed him in the opposite direction. As the

car passed by, the father noticed its driver was slouched down so far in his seat that only his head

was visible.

{¶14} The father testified that, when he reached his daughters, the older sister told him

what had transpired between her, her sister, and Yoho. Specifically, she told him Yoho had asked

for directions while he had his pants down and “was playing with himself.” The father could still

see Yoho’s car in the distance. He chased after it on his motorcycle.

{¶15} The father testified that Yoho essentially led them in a large square. He made a

series of left turns until he eventually returned to the road where he had encountered the sisters. 5

At that point, the father maneuvered his motorcycle in front of Yoho’s car and stopped him. The

father testified that Yoho was sitting upright in his seat when they stopped rather than slouching.

He approached Yoho and noticed he was wearing a pair of basketball shorts. The father asked

Yoho about the incident with his daughters. According to the father, Yoho had “a smirk on his

face” while he was being asked about having his pants down. He testified that Yoho responded to

questions in a sarcastic manner and treated the entire incident “like it was all a big joke to him.”

The father took a picture of Yoho’s license plate and phoned the police. While the father was on

the phone with the police, Yoho drove away in his car.

{¶16} Yoho argues his convictions are based on insufficient evidence because the State

failed to prove he knowingly exposed his genitals to the sisters for the purpose of personal sexual

arousal or gratification. According to Yoho, the older sister never clarified whether she could see

his penis and gave no indication that she “understood what constituted masturbation.” Further, he

argues that it is unlikely he thought anyone could observe his alleged actions, given that he was

seated inside his car. He notes that the younger sister never claimed she saw him engage in any

suspicious conduct. Because the State failed to prove each element of his convictions, Yoho

argues, this Court must reverse them.

{¶17} Viewing the evidence in a light most favorable to the State, a rational trier of fact

could have concluded that the State proved the elements of Yoho’s convictions beyond a

reasonable doubt. See Jenks, 61 Ohio St.3d 259 at paragraph two of the syllabus. The older sister

specifically testified that she could see Yoho’s penis while he asked her questions because he was

not wearing any pants or underwear. She testified that he was masturbating, which she described

as “touching himself.” She also told her father that Yoho “was playing with himself.” There is

no indication in the record that the sixteen-year-old did not understand the terms she used. Further, 6

she testified that Yoho repeatedly asked her the same question even though she was answering his

question. The jury reasonably could have concluded that Yoho purposely sought to lengthen their

interaction because he was deriving personal sexual arousal or gratification from knowingly

exposing his penis and touching himself while speaking with her. See R.C. 2907.09(B)(4).

{¶18} Although the younger sister did not actually see Yoho’s penis, R.C. 2907.09(B)(4)

only requires the State to prove an offender’s conduct was “likely” to be viewed by the minor

victim. There was testimony that the younger sister’s pony was shorter than the older sister’s

horse. Only a few feet separated the two sisters as they traveled down the road. Accordingly, the

jury reasonably could have concluded that Yoho already had his pants down when he approached

the sisters and, but for the height difference between the pony and the horse, his penis also would

have been visible to the younger sister. Yoho has not shown that his convictions are based on

insufficient evidence. Accordingly, his first assignment of error is overruled.

ASSIGNMENT OF ERROR II

MR. YOHO’[S] CONVICTIONS WERE AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE[.]

{¶19} In his second assignment of error, Yoho argues his convictions are against the

manifest weight of the evidence. We disagree.

{¶20} When considering a challenge to the manifest weight of the evidence, this Court is

required to consider the entire record, “weigh the evidence and all reasonable inferences, consider

the credibility of 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. Otten, 33 Ohio App.3d 339, 340 (9th

Dist.1986). “A reversal on this basis is reserved for the exceptional case in which the evidence

weighs heavily against the conviction.” State v. Croghan, 9th Dist. Summit No. 29290, 2019- 7

Ohio-3970, ¶ 26. This Court “will not overturn a conviction as being against the manifest weight

of the evidence simply because the trier of fact chose to believe the State’s version of events over

another version.” State v. Warren, 9th Dist. Summit No. 29455, 2020-Ohio-6990, ¶ 25, quoting

State v. Tolliver, 9th Dist. Lorain No. 16CA010986, 2017-Ohio-4214, ¶ 15.

{¶21} Yoho argues his convictions are against the manifest weight of the evidence

because the older sister and the younger sister gave inconsistent testimony. He notes that the

younger sister never saw him engage in any suspicious conduct. He argues that, if anything, the

fact that she was seated on a pony instead of a horse would have meant she was positioned even

closer to him than the older sister. Further, he argues that the older sister’s description of him

masturbating was vague. According to Yoho, it is unclear whether she saw him touching his

genitals or just assumed he was doing so. He notes that he was wearing shorts when the father

stopped his car and spoke with him. He also notes that the father never said he saw any movement

or behavior that would have been consistent with him (Yoho) pulling up his shorts while driving.

Thus, he argues the jury lost its way by convicting him.

{¶22} Having reviewed the record, we cannot conclude that this is the exceptional case

where the evidence weighs heavily against Yoho’s convictions. See Croghan, 2019-Ohio-3970,

at ¶ 26. The record does not support his contention that the older sister’s testimony was vague.

She specifically stated that Yoho was not wearing pants or underwear, she saw his penis, and she

saw him touching his penis while they spoke. The fact that the younger sister did not see Yoho’s

penis does not mean the sisters gave inconsistent testimony. The older sister explained that she

could see inside the car due to her heightened position on her horse. The two sisters, therefore,

differed in their vantage points. 8

{¶23} Regarding Yoho’s basketball shorts, there was testimony that he changed his

seating position before the father stopped him. The father testified that, when he first observed

Yoho driving past him, Yoho was slouched down so far in his seat that only his head was visible.

The father did not immediately follow Yoho because he first stopped and spoke with his daughters.

He testified that, by the time he stopped Yoho, Yoho was seated normally in his car and was no

longer slouching. The jury reasonably could have concluded that Yoho changed his seating

position because he adjusted his basketball shorts before the father stopped him. Yoho has not

shown that the jury lost its way by convicting him. Accordingly, his second assignment of error

is overruled.

ASSIGNMENT OF ERROR III

THE TRIAL COURT ERRORED WHEN IT SENTENCED MR. YOHO [TO] 90 DAYS IN JAIL WHEN THE VERDICT FORM DID NOT LIST AGGRAVATING FACTORS OR LEVEL OF OFFENSE.

{¶24} In his third assignment of error, Yoho argues the trial court erred when it sentenced

him to 90 days in jail on each of his counts. According to Yoho, his verdict forms did not comply

with R.C. 2945.75(A)(2) and State v. Pelfrey, 112 Ohio St.3d 422, 2007-Ohio-256. For the

following reasons, we reject his argument.

{¶25} “[W]hen a defendant can be convicted of different degrees of the same offense, ‘a

verdict form signed by a jury must include either the degree of the offense of which the defendant

is convicted or a statement that an aggravating element has been found to justify convicting a

defendant of a greater degree of a criminal offense.’” State v. Jones, 9th Dist. Medina No.

17CA0070-M, 2019-Ohio-60, ¶ 19, quoting Pelfrey at syllabus. If a verdict form lacks the degree

of the offense at issue or a finding on an aggravating element, “a guilty verdict constitutes a finding

of guilty of the least degree of the offense charged.” R.C. 2945.75(A)(2). 9

{¶26} Yoho argues the trial court erred when it sentenced him based on his having

committed first-degree misdemeanors. He notes that his verdict forms did not contain the degree

of his offenses or any aggravating elements. Thus, he claims he could only be convicted of fourth-

degree misdemeanors. Upon review, this Court rejects Yoho’s assignment of error.

{¶27} “R.C. 2945.75(A)(2) is inapplicable where a criminal statue contains multiple

subsections and each subsection contains a separate and distinct set of elements.” State v. Binford,

9th Dist. Summit No. 27950, 2016-Ohio-7678, ¶ 17. Yoho was only charged with violations of

R.C. 2907.09(B)(4). That statute provides as follows:

(B) No person shall knowingly do any of the following, under circumstances in which the person’s conduct is likely to be viewed by and affront another person who is in the person’s physical proximity, who is a minor, and who is not the spouse of the offender:

***

(4) Expose the person’s private parts with the purpose of personal sexual arousal or gratification or to lure the minor into sexual activity.

R.C. 2907.09(B)(4). A violation of subsection (B)(4) is a first-degree misdemeanor unless the

offender has a prior conviction for public indecency. R.C. 2907.09(C)(5). If the offender has a

prior conviction for public indecency, then a violation of R.C. 2907.09(B)(4) is a fifth-degree

felony. Id.

{¶28} The State never claimed Yoho had a prior conviction for public indecency. He was

found guilty of the least degree of the offenses for which he was charged (i.e., two first-degree

misdemeanors). He was not convicted or sentenced of a higher-level offense based on any

additional findings or enhancements beyond the base elements of his charged offenses. Compare

State v. Dardie, 9th Dist. Summit No. 30168, 2023-Ohio-1656, ¶ 14-21 (sustaining challenge to

verdict form where the form failed to include the additional finding that would have elevated the

crime of failure to comply from a first-degree misdemeanor to a third-degree felony). While R.C. 10

2907.09 “does contain other subsections, [] each has their own separate elements.” State v.

Edwards, 9th Dist. Lorain No. 12CA010274, 2013-Ohio-3068, ¶ 35. Under these circumstances,

R.C. 2945.75(A)(2) and Pelfrey do not apply. See State v. Gordon, 9th Dist. Summit No. 28191,

2017-Ohio-5796, ¶ 66-67; State v. Binford, 9th Dist. Summit No. 27950, 2016-Ohio-7678, ¶ 15-

17. Accordingly, Yoho’s third assignment of error is overruled.

ASSIGNMENT OF ERROR IV

THE TRIAL COURT ERRED BY NOT MERGING TWO COUNTS FOR SENTENCING PURPOSES.

{¶29} In his fourth assignment of error, Yoho argues the trial court erred when it failed to

merge his convictions for sentencing. We reject his argument.

{¶30} “An accused’s failure to raise the issue of allied offenses of similar import in the

trial court forfeits all but plain error * * *.” State v. Rogers, 143 Ohio St.3d 385, 2015-Ohio-2459,

¶ 3. A forfeited error will result in a reversal only if it “affected the outcome of the proceeding

and reversal is necessary to correct a manifest miscarriage of justice.” Id. A defendant who forfeits

an allied offense argument “has the burden to demonstrate a reasonable probability that the

convictions are for allied offenses of similar import committed with the same conduct and without

a separate animus * * *.” Id. This Court will not develop a plain error argument on an appellant’s

behalf. State v. Clark, 9th Dist. Medina No. 20CA0020-M, 2021-Ohio-3397, ¶ 20.

{¶31} The record reflects that Yoho did not raise an allied offense argument at trial. Nor

has he argued plain error on appeal. “This Court will not develop [a plain error argument] for him

as it is his burden on appeal to demonstrate ‘a reasonable probability’ that his convictions are in

fact for allied offenses.” Id. at ¶ 20, quoting Rogers at ¶ 3. Accordingly, his fourth assignment of

error is overruled. 11

III.

{¶32} Yoho’s assignments of error are overruled. The judgment of the Wayne County

Municipal Court is affirmed.

Judgment affirmed.

There were reasonable grounds for this appeal.

We order that a special mandate issue out of this Court, directing the Wayne County

Municipal Court, County of Wayne, State of Ohio, to carry this judgment into execution. A

certified copy of this journal entry shall constitute the mandate, pursuant to App.R. 27.

Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the period

for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is instructed to

mail a notice of entry of this judgment to the parties and to make a notation of the mailing in the

docket, pursuant to App.R. 30.

Costs taxed to Appellant.

JILL FLAGG LANZINGER FOR THE COURT

STEVENSON, P. J. SUTTON, J. CONCUR. 12

APPEARANCES:

WESLEY A. JOHNSTON, Attorney at Law, for Appellant.

ANGELA WYPASEK, Prosecuting Attorney, and BRIANNA DIETRY, Assistant Prosecuting Attorney, for Appellee.