State v. Locke

[Cite as State v. Locke, 2018-Ohio-27.]

COURT OF APPEALS

ASHLAND COUNTY, OHIO

FIFTH APPELLATE DISTRICT

STATE OF OHIO : JUDGES:

: Hon. W. Scott Gwin, P.J.

Plaintiff - Appellee : Hon. John W. Wise, J.

: Hon. Craig R. Baldwin, J.

-vs- :

:

JONAH A. LOCKE : Case No. 17-COA-019

:

Defendant - Appellant : OPINION

CHARACTER OF PROCEEDING: Appeal from the Ashland County

Court of Common Pleas, Case No.

16-CRI-096

JUDGMENT: Affirmed

DATE OF JUDGMENT: January 2, 2018

APPEARANCES:

For Plaintiff-Appellee For Defendant-Appellant

CHRISTOPHER R. TUNNELL CHRISTINA I REIHELD

Prosecuting Attorney P.O. Box 532

Danville, Ohio 44304

By: VICTOR R. PEREZ

Assistant Prosecuting Attorney

110 Cottage Street

Ashland, Ohio 44805

Ashland County, Case No. 17-COA-019 2

Baldwin, J.

{¶1} Defendant-appellant Jonah A. Locke appeals his conviction and sentence

from the Ashland County Court of Common Pleas on three counts of public indecency.

Plaintiff-appellee is the State of Ohio.

STATEMENT OF THE FACTS AND CASE

{¶2} On May 12, 2016, the Ashland County Grand Jury indicted appellant on

three counts of public indecency in violation of R.C. 2907.09(A)(1). While two of the

counts were felonies of the fifth degree, the other count was a misdemeanor of the first

degree. At his arraignment on May 20, 2016, appellant entered a plea of not guilty to the

charges.

{¶3} Subsequently, a jury trial commenced on April 18, 2017. At the trial, Leann

Love testified that she lived on Vine Street and was outside cleaning her car on April 25,

2016 at approximately 3:00 p.m. when she made eye contact with a man who was

shirtless and wearing sweatpants. After the man crossed the street and started to

approach her, Love walked to the back of her house. She identified appellant at trial as

the man. According to Love, the two met in her backyard. When the man was closer to

the front of Love’s house, she went into the house and locked the doors because she was

nervous. The man then walked away.

{¶4} Later the same day, Love saw on Facebook that the Sheriff’s Office were

looking for the man that she had observed in her neighborhood. She called the police and

told them that their description of the man was “off”. The police description described the

man as Hispanic and “a lot taller and bigger than the person that I saw.” Trial Transcript

at 107. Love was unable to identity the person who she had seen when shown two

Ashland County, Case No. 17-COA-019 3

different sets of photo lineups. After the police arrested a suspect, they contacted Love

and asked her to look at the man’s picture online. Love looked online and identified

appellant as the person who she had seen on that day. At trial, she testified that she was

100% sure that appellant was that person.

{¶5} On cross-examination, Love testified that she had described the man to

police as white, between 5’8” and 5”10” with a pock marked face and wearing dark pants

with a white shirt over his head. On redirect, she testified that she picked appellant’s

picture out of 40 photographs online.

{¶6} C.K. testified that she was ten years old on April 25, 2016 and was at her

house sitting on a trampoline in her backyard on Vine Street. She testified that a man who

was shirtless wearing sweatpants with a dark blue sweatshirt tied around his head was

walking around her garage heading towards her. The man walked around the garage

once towards Vine Street and then came back. C.K. testified that the man told her to look

and that when she did, the man pulled down his pants and was not wearing any

underwear. She testified that she saw the man’s penis and became scared. C.K. identified

appellant in court as the man. She further testified that she picked appellant out of a photo

lineup shown to her by the police and was “very sure” that appellant was the man. Trial

Transcript at 123. C.K. later testified that she was able to see the man’s face and that

appellant was the man.

{¶7} The next witness to testify was Bruce Cassidy. He testified that he lived in

the Barbara Lanes Apartments and that, on April 25, 2016, when he was backing out of

his parking spot, he noticed appellant walking down the sidewalk behind the vehicles. He

Ashland County, Case No. 17-COA-019 4

testified that appellant had a ponytail and was wearing dark clothes. Cassidy testified that

he had not seen appellant before and did not see him again.

{¶8} Kedrick Brown next testified that on April 25, 2016, he was at his home on

Sloan Avenue. He testified that he saw appellant wearing dark sweatpants with a shirt

tied around his head walking around the Barbara Lanes Apartments in his backyard.

Brown testified that he saw appellant exposing himself to the two little neighbor girls.

According to Brown, appellant was “waiving his penis, he wanted them to see what he

had.” Trial Transcript at 141. He testified that the girls then took off running towards the

house terrified while appellant walked towards the back of Barbara Lane. Brown was

unable to identify appellant out of the first photo lineup shown to him by police, but

identified appellant out of a lineup shown to him two or three days later. He testified that

he was 210% sure that appellant was the man who he saw in the second lineup.

{¶9} On cross-examination, Brown testified that he described the man to police

as being a white male between 5’9” and 6 feet wearing dark colored sweatpants with a

white shirt wrapped around his head.

{¶10} Kathleen Nell, the great grandmother of the two girls who appellant exposed

himself to, testified that she lives on Sloan Avenue with her great grandchildren and that

the two girls were three years old on April 25, 2016. Nell testified that the two girls ran up

to her upset and screaming that the “nasty man wanted us to see his dick and suck his

dick,…” Trial Transcript at 153. She testified that they had never heard the word “dick”

before. According to Nell, she saw someone going around the Barbara Lane Apartments

behind her house and had never seen the man, who had a shirt tied around his head,

before. At trial, she identified appellant as the man who she saw walking behind her house

Ashland County, Case No. 17-COA-019 5

by the Barbara Lanes Apartments. She further testified that the two girls saw appellant’s

picture in the newspaper and pointed to his photograph while acting scared. Nell further

testified that the picture of appellant in the newspaper was the same man who she saw

on April 25, 2016.

{¶11} At trial, Barbara Edwards testified that she lives in an apartment complex

on East Main Street in Ashland, Ohio. She testified that on April 29, 2016, she was

smoking a cigarette with her neighbor on her neighbor’s patio when a man walked by

wearing a light gray windbreaker tied around his face and dark gray sweatpants. She

identified appellant in court as the man. Edwards testified that when she saw appellant

standing by a tree, he pulled down his sweatpants to mid-thigh so that she was able to

see his genitals. Edwards testified that she then walked towards appellant and “asked

him what the fuck he was doing.” Trial Transcript at 171. Appellant just stood there with

his pants down looking at her and started touching himself. Appellant then pulled up his

pants “with his hand still on his penis and balls and was masturbating.” Trial Transcript at

172. Edwards checked the Sheriff’s Department website booking photos and identified

appellant as the person who she saw on April 29, 2016. When asked, she testified that

she did not know his name and that there were more than 30 photos on the website. She

testified that she had never seen appellant before. Edwards identified appellant at trial as

the person who she saw on April 29, 2016.

{¶12} On cross-examination, Edwards testified that she wears glasses and that

her vision is blurry without them. She agreed that she told the police that she was not

wearing the glasses at the time of the incident. The following is an excerpt from her

testimony at trial:

Ashland County, Case No. 17-COA-019 6

{¶13} Q: And I think that you talked on a couple different occasions to the police,

I have May 6th and also the date of the incident, you said or clarified that you did not have

the glasses on and did not see Locke’s penis, do you remember saying that?

{¶14} A: I could not really see, but like an outline, but could not define size, it was

blurry, but it’s not, it’s blurry, but not defined. I could not tell you size. I am not trying to

be gross.

{¶15} Q: Like I said, I have two separate accounts where you say on both

occasions that you never saw his penis?

{¶16} A. Well, the pants were down to here.

{¶17} Q. Okay. So obviously – so you are assuming that his penis was out?

{¶18} A: Well, no, it was.

{¶19} Trial Transcript at 180. She testified that while she could not describe

appellant’s penis, she could tell that “his junk was out.” Trial Transcript at 183.

{¶20} Melissa Cousins testified that on April 29, 2016, she was on her porch

smoking with Edwards when they saw a man come around the two buildings. The two

said hello to the man who put his head down and kept walking. She testified that the man

was wearing dark gray sweats and a lighter gray hoodie with the hood up. Cousins

testified that soon after, she observed the man by a tree and was unable to tell if he was

urinating or exposing himself. The man then started walking away with his hands down

his pants. Cousins testified that she took two pictures of the man walking away using her

cell phone. When asked when she next saw the man, she testified that she viewed the

Sheriff’s Department website after hearing that someone had been arrested and picked

appellant out of more than 20 photos on the website. She testified that she identified him

Ashland County, Case No. 17-COA-019 7

because of his eyebrows and that she was 100% sure of her identification. Cousins

identified appellant in court as the man who she saw on April 29, 2016.

{¶21} On cross-examination, Cousins testified that she could not see appellant’s

private area but could see that he had his hands down his pants. On redirect, she testified

that she had briefly seen appellant from the hoodie jacket around his face.

{¶22} Ashland Police Officer Aaron Kline testified that he was on duty on April 29,

2016 when he received a call about a suspect who was alleged to have exposed himself.

The suspect was described as dressing in gray with jogger style pants and a hoodie.

Officer Kline saw a man in the area who matched the description phoned in over the radio.

The man had a hoodie style shirt pulled over his head. Officer Kline identified appellant

as the person who was later located under a pile of debris in a garage. Detective Kimberly

Mager of the Ashland Police Department testified that she served as a blind administer

of the photo lineups for the witnesses in this case. She testified that a lineup was

administered to Kedrick Brown on April 29, 2016 and that he identified number 5,

appellant. On the same day, she administered a lineup to C.K. who also picked number

5, appellant.

{¶23} On cross-examination, Detective Mager testified that she also gave Kedrick

Brown a photo lineup on April 26, 2016 and that he mentioned photos 3 and 5 as the

possible suspect. She testified that appellant was not in the lineup. She further testified

that when she administered the lineup on April 29, 2016, Brown picked out two people

but picked out one more than the other. Appellant was in the lineup on April 29, 2016.

{¶24} At the conclusion of the evidence and the end of deliberations, the jury, on

April 19, 2017, found appellant guilty of all of the charges. As memorialized in a Judgment

Ashland County, Case No. 17-COA-019 8

Entry filed on May 31, 2017, appellant was sentenced to one year in prison for Count 1

and to a concurrent 90 days in jail for Count 3. With respect to the remaining Count,

appellant was placed on community control for a period of three years.

{¶25} Appellant now raises the following assignment of error on appeal:

{¶26} I. APPELLANT LOCKE’S CONVICTIONS FOR PUBLIC INDECENCY

WERE AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.

I

{¶27} Appellant, in his sole assignment of error, argues that his convictions for

public indecency were against the manifest weight of the evidence. We disagree.

{¶28} In determining whether a conviction is against the manifest weight of the

evidence, the court of appeals functions as the “thirteenth juror,” and after “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 jury clearly

lost its way and created such a manifest miscarriage of justice that the conviction must

be overturned and a new trial ordered.” State v. Thompkins, 78 Ohio St.3d 380, 387,

1997-Ohio-52, 678 N.E. 2nd 541, superseded by constitutional amendment on other

grounds as stated by State v. Smith, 80 Ohio St.3d 89, 1997-Ohio-355, 684 N.E.2d 668.

Reversing a conviction as being against the manifest weight of the evidence and ordering

a new trial should be reserved for only the “exceptional case in which the evidence weighs

heavily against the conviction.” Id.

{¶29} Appellant's argument focuses on the credibility of the witnesses. Appellant

contends that the evidence shows that appellant did not match the early description of

the alleged offender and that several witnesses identified other individuals in a photo

Ashland County, Case No. 17-COA-019 9

lineup as the possible perpetrator. Appellant also argues that various factors impaired the

reliability of the witnesses. Appellant notes that, for example, that Edwards admitted to

not wearing her prescription glasses on the day in question.

{¶30} However, the weight to be given to the evidence and the credibility of the

witnesses are issues for the trier of fact. State v. DeHass, 10 Ohio St.2d 230, 231, 237

N.E.2d 212 (1967). 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, 1997-Ohio-260, 418, 674 N.E.2d

1159. The jury as the trier of fact was free to accept or reject any and all of the evidence

offered by the parties and assess the witness's credibility. “While the jury may take note

of the inconsistencies and resolve or discount them accordingly * * * such inconsistencies

do not render defendant's conviction against the manifest weight or sufficiency of the

evidence.” State v. Craig, 10th Dist. Franklin No. 99AP–739, 1999 WL 29752 (Mar 23,

2000) citing State v. Nivens, 10th Dist. Franklin No. 95APA09–1236, 1996 WL 284714

(May 28, 1996). Indeed, the jury need not believe all of a witness' testimony, but may

accept only portions of it as true. State v. Raver, 10th Dist. Franklin No. 02AP–604, 2003–

Ohio–958, ¶ 21, citing State v. Antill, 176 Ohio St. 61, 67, 197 N.E.2d 548 (1964).

{¶31} In the case sub judice, we cannot say that the jury clearly lost its way in

convicting appellant of public indecency. As is stated above, Leann Love testified that she

looked online and identified appellant as the person who she saw on that day. At trial, she

testified that she was 100% sure that appellant was that person. There was testimony

that C.K identified appellant from the photo lineup and did not identify anyone else. She

also identified appellant in court. While Kedrick Brown was unable to identify appellant

Ashland County, Case No. 17-COA-019 10

out of the first photo lineup shown to him by police, which did not contain appellant’s

photo, he identified appellant out of a lineup shown to him two or three days later and

testified that he was 210% sure that appellant was the man who he saw. He also identified

appellant in court as the man who had exposed himself to the two girls.

{¶32} In addition, Kathleen Nell identified appellant at trial as the man who had

exposed himself to her great grandchildren. She testified that the two girls pointed to

appellant’s picture in the newspaper and were scared. Both Barbara Edwards and

Melissa Cousins picked appellant’s picture on the Sheriff’s website although there were

numerous pictures of other individuals. While Edwards testified that she was not wearing

her glasses and could not describe appellant’s penis, she testified that she was able to

tell that appellant’s penis was exposed. As noted by appellee, while there were

inconsistencies in the witness’s descriptions of the clothing that the man was wearing, the

jury, as trier of fact, was in the best position to assess their credibility. The jury clearly

found the witnesses testimony as to the identification of appellant credible.

{¶33} Appellant’s sole assignment of error is, therefore, overruled.

Ashland County, Case No. 17-COA-019 11

{¶34} Accordingly, the judgment of the Ashland County Court of Common Pleas

is affirmed.

By: Baldwin, J.

Gwin, P.J. and

John Wise, J. concur.