State v. Guild
| Decision Date | 01 October 2021 |
| Docket Number | 29133 |
| Citation | 2021 Ohio 3520 |
| Parties | STATE OF OHIO Plaintiff-Appellee v. JOSHUA N. GUILD Defendant-Appellant |
| Court | Ohio Court of Appeals |
Trial Court Case No. 20CRB1404 (Criminal Appeal from Municipal Court)
NOLAN C. THOMAS, Atty. Reg. No. 0078255, Attorney for Plaintiff-Appellee
NICHOLAS D. GRAMAN, Atty. Reg. No. 0082359 Attorney for Defendant-Appellant
{¶1} Joshua N. Guild appeals from the trial court's judgment convicting him of voyeurism, a misdemeanor of the first degree. On appeal, Guild asserts that his conviction was based on insufficient evidence and was against the manifest weight of the evidence. For the following reasons, the trial court's judgment will be affirmed.
{¶2} On December 5, 2020, Deysi Sizeland was at the Valley Thrift Store in Kettering with her family, most notably A.S., her five-year-old daughter. When Sizeland was standing in the aisle approximately four to six feet away from A.S., she spotted Guild kneeling down holding his smartphone in his left hand. Sizeland testified that Guild was "no more than a foot away from [A.S.]," placing his phone "right directly underneath [her] dress." Tr. 13. Sizeland then confronted Guild, demanding that she see his phone. When Guild refused, Sizeland became physical and "maneuvered his phone or his hand" to see the phone screen. Tr. 9. She testified that his phone was on the camera mode, recording. Tr. 9. As Guild attempted to leave the encounter, Sizeland began requesting for someone to call the police. Tr. 12. The police were called, and Officer Stull arrived on scene. Officer Stull placed Guild in handcuffs while investigating. Tr. 31. After completing the investigation, Officer Stull arrested Guild for voyeurism, in violation of R.C. 2907.08(D).
{¶3} The matter proceeded to a bench trial. The State's evidence at trial consisted of a thumb drive containing a number of videos, including the cruiser cam from the officers involved in this case and store surveillance footage from the area where the incident occurred. Tr. 1. The State also presented still photographs of the scene, as well as of A.S. in her long dress. Both Sizeland and Officer Stull testified to their observations on the day in question. Guild did not testify or offer any evidence on his own behalf.
{¶4} The store surveillance video was played approximately 16 times during trial. Tr. 14, 15, 16, 19, 21, 23, 26, 38, 39, 41, 42, 44, 45. The store surveillance video showed A.S. standing by Sizeland and depicted Guild closely approaching A.S. while getting in a crouched position with his phone in his left hand. The video did not show whether the phone was directly under A.S., perhaps due to Sizeland's blocking the view. However, the video did show Sizeland facing the encounter from approximately four to six feet away. Sizeland testified that she saw Guild "in a crouched position with a phone underneath [A.S.'s] dress." Tr. 8. She indicated that Tr. 8. She noted that she saw the face of the screen, and "it was on the recording mode." Tr. 9.
{¶5} Officer Stull testified about his conversation with Guild after the incident. The officer stated that Guild told him that he (Guild) was at the Valley Thrift Store "to buy and sell stuff * * * at a higher price." Tr. 33. Officer Stull told the court that he asked Guild to see his most recent video on his phone, and Guild immediately became very nervous, not wanting to show him anything on his phone. Guild began rambling in a nervous manner, stating "how the phone was his life, and he * * * didn't want to accidently find out that his video was recording on accident and get him in trouble for something he did not mean to do." Tr. 35. No photographs or videos from Guild's phone were offered into evidence at trial.
{¶6} Guild challenged the State's case through cross-examination. During cross-examination, defense counsel repeatedly played the surveillance video, asking Sizeland to point to the exact moment that she saw the phone directly underneath A.S.'s dress. Tr. 20. Sizeland was unable to point to this part of the video, stating: "You can't directly see because I'm blocking it." Tr. 27. She indicated, "[t]he video shows one angle, and what I saw, in person, is another thing." Tr. 27. Guild further challenged Sizeland by emphasizing the fact that Guild was not looking at his phone during the alleged incident. Sizeland testified, however, that it appeared he was "pretending to look at something on the bottom shelf." Tr. 18.
{¶7} The trial court found Guild guilty and sentenced him to 180 days in jail, with 150 of those days suspended, a $1000 fine with $900 suspended, and five years of probation. It also ordered Guild to register as a Tier I sex offender.
{¶8} Guild appeals from his conviction.
{¶9} In his sole assignment of error, Guild claims that his conviction was based on insufficient evidence and was against the manifest weight of evidence. He emphasizes that "there was no evidence his phone was on record or picture mode and no evidence was recovered from the phone." Appellant's brief at 8.
{¶10} When a defendant challenges the sufficiency of the evidence, "he [or she] is arguing that the State presented inadequate evidence on at least one element of the offense to sustain the verdict as a matter of law." State v. Goldblum, 2d Dist. Montgomery No. 25851 2014-Ohio-5068, ¶ 14. State v. Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492 (1991).
{¶ 11} In contrast, "[a] weight of the evidence argument challenges the believability of the evidence and asks which of the competing inferences suggested by the evidence is more believable or persuasive." State v. Cassell, 2d Dist. Clark No. 69-CA-64, 2011-Ohio-23, U 46. When a conviction is challenged on appeal as being against the manifest weight of the evidence, "[t]he court, reviewing the entire record, weighs the evidence and all reasonable inferences, considers the credibility of witnesses and determines 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." Goldblum at U 23; see also State v. Thompkins, 78 Ohio St.3d 380, 387, 678 N.E.2d 541 (1991), quoting State v. Martin, 20 Ohio App.3d 172, 175, 485 N.E.2d 717 (1st Dist.1983).
{¶ 12} Because the trier of fact sees and hears the witnesses at trial, we must defer to the fact-finder's decisions whether, and to what extent, to credit the testimony of particular witnesses. State v. Lawson, 2d Dist. Montgomery No. 16288, 1997 WL 476684, *4 (Aug. 22, 1997). The fact that the evidence is subject to different interpretations does not render the conviction against the manifest weight of the evidence. State v. Wilson, 2d Dist. Montgomery No. 22581, 2009-Ohio-525, If 14. A judgment of conviction should be reversed as being against the manifest weight of the evidence only in exceptional circumstances. Martin at 175.
{¶ 13} The trial court found Guild guilty of voyeurism. That statute states in relevant part: "No person shall secretly or surreptitiously videotape, film, photograph, or otherwise record another person under or through the clothing being worn by that other person for the purpose of viewing the body of, or the undergarments worn by, that other person." R.C. 2907.08(D). "Surreptitiously" is commonly defined as "unauthorized and clandestine," that is, done by "stealth and without legitimate authority." State v. Latimore, 12th Dist. Butler No. CA2015-09-175, 2016-Ohio-2989, H 11. Therefore, by its terms, "[t]he elements of R.C. 2907.08(D) include an activity conducted 'secretly or surreptitiously' thereby implying without consent 'under or through the clothing' of another, 'for the purpose of viewing the body of, or undergarments worn by, that other person.'" State v. Zimmerer, 12th Dist. Butler No. CA2019-10-176, 2020-Ohio-3921, 1J40, quoting State v. Hopper, 5th Dist. Licking Nos. 15-CA-92, 15-CA-93, 15-CA-94, 15-CA-95, 15-CA-96, 2016-Ohio-5760, 1J21.
{¶14} Construing the evidence in the light most favorable to the State, there was sufficient evidence to support Guild's conviction. The video surveillance evidence and Sizeland's testimony were enough to establish each element of voyeurism. A rational trier of fact could have concluded that Guild secretly or surreptitiously videotaped or filmed underneath A.S.'s dress beyond a reasonable doubt.
{¶15} Guild argues that, because the surveillance video does not show that Guild placed the phone directly underneath A.S.'s dress and because Sizeland's testimony only indicated that she saw the phone in recording mode...
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