[Cite as State v. Flanagan, 2013-Ohio-5456.]
IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
MONTGOMERY COUNTY
STATE OF OHIO :
: Appellate Case No. 25520
Plaintiff-Appellee :
: Trial Court Case No. 12-CRB-2045
v. :
:
ERIC C. FLANAGAN : (Criminal Appeal from
: (Dayton Municipal Court)
Defendant-Appellant :
:
...........
OPINION
Rendered on the 13th day of December, 2013.
...........
JOHN J. DANISH, Atty. Reg. #0046639, and STEPHANIE L. COOK, Atty. Reg. #0083743, by
MATTHEW KORTJOHN, Atty. Reg. #0083743, City of Dayton Prosecutor’s Office, 335 West
Third Street, Room 372, Dayton, Ohio 45402
Attorney for Plaintiff-Appellee
ROBERT ALAN BRENNER, Atty. Reg. #0067714, Robert Alan Brenner, LLC, Post Office Box
341021, Beavercreek, Ohio 45434-1021
Attorney for Defendant-Appellant
.............
HALL, J.,
{¶ 1} Eric C. Flanagan appeals from his conviction and sentence on one count of
public indecency in violation of R.C. 2907.09(A)(3), a third-degree misdemeanor.
{¶ 2} In two related assignments of error, Flanagan challenges the legal sufficiency and
manifest weight of the evidence to support his conviction.
{¶ 3} The record reflects that Flanagan’s conviction stems from his participation in
sexual conduct in a parked car in a parking lot. At his jury trial, the State presented testimony
from four witnesses. The first witness was Detective Raymond St. Clair. He testified that he
observed Flanagan stop and pick up a woman on Xenia Avenue in Dayton. Based on his
experience and the woman’s behavior, St. Clair suspected that she was a prostitute. He proceeded
to follow Flanagan’s vehicle for ten to fifteen minutes in an unmarked car. He watched as
Flanagan eventually pulled behind an industrial building at the end of Dayton Wire Parkway near
Troy Street. It was approximately 8:20 p.m. when Flanagan parked near the building. St Clair
testified that the sun was setting and it was “getting close to getting dusk.”
{¶ 4} Staying out of Flanagan’s sight, St. Clair approached the south side of the
building on foot and waited for assistance. While waiting, he peered around the corner and saw
Flanagan’s car parked on the west side of the building, which housed a business known as
Dayton Wire Products. Flanagan’s car was facing south near the building. After a few minutes,
Detectives Doug George, Brian Dedrick, and Jason Barnes arrived to assist St. Clair. The
detectives then made a coordinated advance toward Flanagan’s car. St. Clair rushed the car on
foot while the other detectives drove up to it in two vehicles with their high beams on.
{¶ 5} St. Clair testified that he shined a flashlight in the driver’s window. He saw
Flanagan reclined in the driver’s seat with his pants around his knees. Flanagan’s passenger,
Alicia Albrektson, was bent down with her head in his lap. According to St. Clair, she appeared
to be performing oral sex. Upon seeing the detectives, Albrektson became startled and sat up,
exposing Flanagan’s penis to the detectives.
{¶ 6} The State’s next witness was Detective George. He testified that it was dusk and
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“becoming dark” when he arrived at Dayton Wire Products. George turned on his high beams and
drove his truck “nose-to-nose” with Flanagan’s car. He saw Flanagan reclined in the driver’s seat.
Because of the height difference between Flanagan’s sports car and the detective’s truck, George
could see Albrektson’s head in Flanagan’s lap. Based on the circumstances, he could tell that
Albrektson was performing oral sex.
{¶ 7} The State’s third witness was Detective Dedrick. He testified that it was dusk but
not dark when he arrived at the scene. Dedrick explained that he and Detective Barnes drove
around the building and stopped about ten feet from the passenger’s side of Flanagan’s car. He
saw Flanagan reclined in the driver’s seat. He did not notice Albrektson until she “popped up”
when he was approximately twenty feet from Flanagan’s car. Dedrick testified that she appeared
to be startled, and he opined that she was performing oral sex.
{¶ 8} The State’s final witness was Detective Barnes. He testified that he rode with
Detective Dedrick to the scene. He stated that it was “dusk and getting dark.” Upon approaching
Flanagan’s car, he saw Flanagan reclined in the driver’s seat. While still in Detective Dedrick’s
vehicle and with the headlights on, he was able to see Albrektson leaning over toward the
driver’s seat. Dedrick quickly exited the vehicle and, using a flashlight, was able to see
Albrektson’s head in Flanagan’s lap. Based on Albrektson’s position, Barnes believed she was
performing oral sex.
{¶ 9} Following the State’s case, the trial court overruled Flanagan’s Crim.R. 29
motion for judgment of acquittal. Flanagan then testified in his own defense and denied engaging
in sexual activity with Albrektson. He explained that he and Albrektson were friends and that
they went behind the building to talk privately and to drink beer. Flanagan stated that it was
4
“starting to get dark” at the time. He testified that he purposely sought out an area that was not
populated. When he found the industrial area around Dayton Wire Products, he “figured there
wouldn’t be very many people out” and “it would basically be an abandoned area.” Flanagan also
testified that the side windows of his car were legally tinted. On cross examination, he admitted
knowing there were some businesses in the area where he parked. He stated, however, that he
made sure Dayton Wire Products was not open for business and that no “traffic flow” was
present.
{¶ 10} Based on the evidence presented, a jury found Flanagan not guilty of violating
R.C. 2907.09(A)(1) or R.C. 2907.09(A)(2). It found him guilty of violating R.C. 2907.09(A)(3).
The trial court imposed a partially suspended jail sentence, a fine, and other sanctions. The trial
court stayed execution of the sentence pending the outcome of this appeal.
{¶ 11} In his first assignment of error, Flanagan contends the State presented legally
insufficient evidence to support his conviction. When a defendant challenges the sufficiency of
the evidence, he is arguing that the State presented inadequate evidence on an element of the
offense to sustain the verdict as a matter of law. State v. Hawn, 138 Ohio App.3d 449, 471, 741
N.E.2d 594 (2d Dist.2000). “An appellate court’s function when reviewing the sufficiency of the
evidence to support a criminal conviction 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. 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. Jenks, 61 Ohio
St.3d 259, 574 N.E.2d 492 (1991), paragraph two of the syllabus.
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{¶ 12} With the foregoing standards in mind, we find legally insufficient evidence to
convict Flanagan under R.C. 2907.09(A)(3), which states:
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: * * * Engage in conduct that to an ordinary observer would appear to
be sexual conduct[.]
{¶ 13} Viewing the evidence in a light most favorable to the State, we do not believe a
rational trier of facts could have found all of the foregoing elements proven beyond a reasonable
doubt. The evidence certainly is sufficient to support a finding that Flanagan engaged in conduct
that to an ordinary observer would appear to be sexual conduct and that his conduct would be
likely to affront others.
{¶ 14} We find no evidence, however, to support a finding that Flanagan engaged in
such conduct under circumstances in which it was likely to be viewed by others. The evidence
before us suggests that Flanagan’s conduct was unlikely to be observed by anyone. Ariel
photographs of the scene show that Flanagan stopped his car in a relatively isolated, industrial
area. The record contains no evidence of any vehicles or people present at Dayton Wire Products
other than Flanagan, Albrektson (who undoubtedly was not affronted), and the detectives. (Trial
Tr. at 83). Based on the photographs, it appears that Flanagan’s car was fairly well concealed on
three sides. The only direction from which he reasonably could have been seen was the
south—the direction toward which his car faced.1 From that direction, Flanagan’s car may have
1
Although there was another building and parking lot beyond some trees to the west of Dayton Wire Products, the record contains
6
been visible from two parking lots of a business south of Dayton Wire Products or, beyond that,
from Heid Drive.
{¶ 15} At trial, Detective St. Clair testified that, from his vantage point at the corner of
the Dayton Wire Products building, he could see at least one vehicle moving in the parking lots to
the south. He also could see some traffic on Heid Drive. (Id. at 80-81). St. Clair estimated that the
distance from Dayton Wire Parkway itself (which was just south of the Dayton Wire Products
building) to the south parking lots where he saw vehicular movement was seventy feet. St. Clair
estimated that Heid Drive was another seventy feet beyond the south parking lots. (Id. at 81).2
He opined that occupants of vehicles in the south parking lots could have seen where Flanagan
had parked. (Id. at 82). Lacking in his testimony, however, is whether anyone in these locations
could see people inside the car or what was happening therein.
{¶ 16} It does not reasonably follow that anyone in the south parking lots or on Heid
Drive likely would have seen Flanagan and Albrektson, at dusk, engaged in conduct that
appeared to be sexual. From his position at the corner of the building near Flanagan’s car, St.
Clair himself could not see Flanagan’s lap as the detective was near the ground. (Id. at 100).
After coming around the corner, St. Clair was able to see Albrektson “leaned over in [Flanagan’s]
lap.” (Id. at 87). He could not say whether any part of Flanagan’s body would have been visible
from Heid Street or the south parking lots. (Id. at 101).
{¶ 17} Detective George similarly testified that he first saw Albrektson when he pulled
no evidence of activity there or any ability to see what Flanagan was doing from there.
2
St. Clair admitted he did not measure the distances. Id. But his estimates are more than generous for the prosecution. The
well-defined aerial photos indicate those distances are more than double his estimates, making the distance from Flanagan’s car to Heid Drive
over 100 yards.
7
his truck nose-to-nose with Flanagan’s vehicle with his high beams activated. (Id. at 111).
George estimated that the south parking lots were two-hundred feet away from where Flanagan
was parked. When asked by the prosecutor whether a person in the south parking lots would have
been able to see “Albrektson’s head going up or down in the defendant’s front seat,” George
responded affirmatively. Although this testimony might support a finding that Flanagan at least
could have been viewed engaging in apparent sexual conduct, it fails to support a conviction
because the record is devoid of evidence that Albrektson’s head ever was “going up or down.”
The detectives testified only that, upon approaching the vehicle, they saw her head in Flanagan’s
lap. Moreover, the fact that a person could have seen apparent sexual activity does not mean such
an observation was likely.
{¶ 18} As for Detective Dedrick, he did not even notice Albrektson until she “popped
up” when he was approximately twenty feet from Flanagan’s car. His testimony could not
possibly support a finding that anyone in the south parking lots or on Heid Street likely would
have seen Flanagan, at dusk, engaged in conduct that appeared to be sexual. Similarly, Detective
Barnes mentioned first seeing Albrektson “face down towards Mr. Flanagan’s lap” as he and
Dedrick approached Flanagan’s car. (Id. at 156). Therefore, his testimony does not support a
finding that anyone in the south parking lots or on Heid Street likely would have seen Flanagan
engaged in apparent sexual conduct.
{¶ 19} In short, even if the evidence supports a finding that apparent sexual conduct
between Flanagan and Albrektson could or might have been visible, the State’s evidence is
insufficient to support a finding that Flanagan’s conduct was likely to be viewed by others.3
3
We recognize, of course, that the detectives did view sexual conduct between Flanagan and Albrektson. In order to do so,
8
{¶ 20} Finally, assuming arguendo that Flanagan’s conduct was likely to be viewed by
others, the State’s evidence is insufficient to establish that he acted recklessly with regard to that
fact. The Revised Code provides that “[a] person is reckless with respect to circumstances, when,
with heedless indifference to the consequences, he perversely disregards a known risk that such
circumstances are likely to exist.” R.C. 2901.22(C). Here Flanagan drove his companion to a
relatively isolated, industrial area at dusk and received oral sex in a closed car where he could
look south and monitor the only direction from which he reasonably might have been observed.
These facts simply do not support a finding that Flanagan acted with heedless indifference or
perversely disregarded a known risk that he was likely to be observed engaged in apparent sexual
activity. Whatever else might be said about Flanagan’s conduct, he did not engage in an act of
public indecency within the meaning of R.C. 2907.09(A)(3).
{¶ 21} The State’s reliance on State v. Bellomy, 2d Dist. Montgomery No. 21452,
2006-Ohio-7087, and Columbus v. Abdalla, 10th Dist. Franklin No. 97APC08-973, 1998 WL
211929 (April 30, 1998), fails to persuade us otherwise. In Bellomy, the defendant was convicted
of violating R.C. 2907.09(A)(3) for engaging in sexual activity while in a car “traveling down a
public street in view of pedestrians or passing motorists” and after the car had stopped in a
residential neighborhood. Bellomy at ¶ 33. In a two-to-one decision, this court upheld a finding
that the defendant’s conduct was likely to be viewed by others. Other than the fact that both cases
involved sex acts in a car, the facts of Bellomy bear no similarity to Flanagan’s case. Flanagan did
not engage in sexual activity amidst others on a public street or in a residential neighborhood. He
however, they carefully concealed their presence and then coordinated a rush toward Flanagan’s vehicle. Absent these extraordinary efforts,
we do not believe Flanagan’s activity was likely to be viewed by the detectives.
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went to a relatively isolated, industrial area at dusk where no one was likely to see him.
{¶ 22} The State’s reliance on Abdalla is equally unpersuasive. In Abdalla, the
defendant was convicted of violating a public-indecency ordinance for (1) standing next to an
undercover officer in the parking lot of a public park and masturbating through his jeans and then
(2) proceeding to masturbate through his jeans in his own car while still in the officer’s presence.
Abdalla at *1-2. Once again, other than the fact that some of the defendant’s sexual activity in
Abdalla occurred inside a car, we see no similarity between the facts of that case and Flanagan’s
case.
{¶ 23} Based on the reasoning set forth above, we hold that the State presented legally
insufficient evidence to convict Flanagan under R.C. 2907.09(A)(3). His first assignment of error
is sustained. The second assignment of error, which raises a manifest-weight-of-the-evidence
issue, is overruled as moot.
{¶ 24} The trial court’s judgment is reversed, and Flanagan’s conviction is vacated.
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DONOVAN and WELBAUM, JJ., concur.
Copies mailed to:
John J. Danish / Stephanie L. Cook
Matthew Kortjohn
Robert Alan Brenner
Hon. Daniel G. Gehres
Case Name: State of Ohio v. Eric C. Flanagan
Case No: Montgomery App. No. 25520
Panel: Donovan, Hall, Welbaum
Author: Michael T. Hall
Summary: