[Cite as State v. Hardgrove,
2022-Ohio-3993.]
COURT OF APPEALS
STARK COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO JUDGES:
Hon. William B. Hoffman, P. J.
Plaintiff-Appellee Hon. John W. Wise, J.
Hon. Craig R. Baldwin, J.
-vsCase No. 2021CA00154
DUSTIN DALE HARDGROVE
Defendant-Appellant OPINION
CHARACTER OF PROCEEDING: Criminal Appeal from the Canton Municipal
Court, Case No. 2021CR03240
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: November 8, 2022
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
KRISTEN BATES-AYLWARD GEORGE URBAN
CANTON LAW DIRECTOR 116 Cleveland Avenue, NW
JASON P. REESE Suite 808
CANTON CITY PROSECUTOR Canton, Ohio 44702
CARRIE D’ANDREA
ASSISTANT PROSECUTOR
218 Cleveland Avenue, SW
Canton, Ohio 44702
Stark County, Case No. 2021CA00154 2
Wise, J.
{¶1} Appellant Dustin Hardgrove appeals his conviction on one count of
voyeurism, entered in the Canton Municipal Court following a jury trial.
{¶2} Appellee is the state of Ohio.
STATEMENT OF THE FACTS
{¶3} For purposes of this Opinion, the relevant facts and procedural history are
as follows:
{¶4} On July 14, 2021, Appellant Dustin Hardgrove was charged with one count
of Voyeurism, in violation of R.C. § 2907.08 (B), a second-degree misdemeanor.
{¶5} On November 15, 2021, the matter proceeded to jury trial. At trial, the jury
heard the following testimony:
{¶6} Appellant Dustin Hardgrove lived with his ex-girlfriend, S.P. in Canton for
several years, until about 2021. (T. at 133). He lived with her and her adult daughter M.P.,
who was twenty-two years old and had moved back into their residence in 2020. (T. at
128).
{¶7} On July 6, 2021, while cleaning Appellant’s work book bag, S.P. discovered
a cell phone that she had never seen before and turned it on because she suspected
Appellant of cheating. (T. at 131-33, 135-36). When she did, S.P. found two videos of her
daughter M.P. (T. at 136-37). The videos showed M.P. getting dressed and undressed
after showering, one of which occurred around 5:00 a.m. (T. at 142-43, 149-50, 282-84).
In one video, M.P.’s breasts were visible and in another, her buttocks were visible. The
family dog blocked view of her pelvic area. (T. at 139, 143, 148-49, 218). In one of the
videos, a man’s face is visible while he was setting up the camera strategically in the
Stark County, Case No. 2021CA00154 3
hallway near a closet Appellant used across from M.P.’s bedroom. (T. at 145, 154-55,
230). M.P. testified that she had no knowledge that she was being recorded, and she felt
like she could not “live in her own house without her privacy being invaded.” (T. at 195,
217). The video showed a man with glasses, facial hair (beard and mustache), ears
“stickin’ out”, a hat being worn backwards, the same shoes Appellant was known to wear,
his voice, and “scrawny” and “hairy” legs. (T. at 145, 162-63, 195, 217, 273).
{¶8} S.P. showed the video to her close friend, Jennifer. (T. at 217). Because
all of these attributes matched Appellant, S.P., M.P. and Jennifer all believed the man in
the video was Appellant. (T. at 162-163; 195, 217). S.P. testified that other men did not
come to the house, and she was familiar with Appellant and his voice, which could be
heard in the videos, because she was in a relationship and living with him. (T. at 140-41,
147-48, 162-63, 195, 273).
{¶9} S.P. also testified that in the past, Appellant had used his cell phone to send
pictures of his penis to other women. (T. at 156).
{¶10} S.P. called the police and then contacted Appellant about the videos and
he told her, “I don’t remember doing that. If I did it, I don’t remember.” (T. at 166).
{¶11} Upon arriving at the residence, Deputy House of the Stark County Sheriff’s
Office spoke with S.P. and M.P. and confirmed that M.P. did not give anyone permission
to videotape her. (T. at 228-229). Deputy House testified that in his experience as a police
officer, the purpose of videotaping a young woman naked is for personal pleasure. (T. at
234).
{¶12} Deputy House testified that he spoke with Appellant who told him that
“basically he was kinda saying he might of done it but he didn’t remember bec - or he
Stark County, Case No. 2021CA00154 4
couldn’t remember because he was drinking but he said he was kinda - - to me he was
kinda of confessing that he did but at the same time he was trying to say he didn’t.” (T. at
239). He stated that Appellant also asked him about the sort of charges he would face
and the duty to register for sex offenses. (T. at 239-40). Deputy House testified that he
felt that Appellant gave inconsistent statements in his interview from what he said initially
and then was “backtracking.” (T. at 240). Deputy House’s recorded interview with
Appellant was played for the jury. (T. at 225-240).
{¶13} Detective Brian Johnson also testified. He explained to the jury that based
on his training and experience investigating sex crimes, voyeurs typically record their
victims so that they have the recordings for future use, most likely to masturbate while
watching them. (T. at 261, 264). He stated that voyeurs typically record their victims, often
with hidden cell phones, or even cameras with vides built in and hidden behind picture
frames. (T. at 264). In cases such as this where a cell phone is set up facing a woman’s
bedroom, the voyeur is typically trying to capture the victim doing things in the privacy of
their own room and then masturbate to said images later. Id.
{¶14} Appellant testified in his own defense at trial and denied that he ever took
videos of M.P. without her knowledge. (T. at 271, 285). Appellant also stated that no other
males were in the home when he was there, and that he would know if another man was
in the house at 4:50 in the morning. (T. at 273, 282). Further, he identified his own voice
on the recordings. (T. at 273). Appellant confirmed that he told Deputy House that if he
did it that he wouldn’t remember it and wouldn’t do it in the right frame of mind; however,
he said that he was under “extreme duress during [his] interview.” (T. at 287).
Stark County, Case No. 2021CA00154 5
{¶15} Following deliberations, Appellant was convicted of one count of
Voyeurism.
{¶16} The trial court sentenced Appellant to one-hundred eighty (180) days in the
Stark County Jail with all but forty-five (45) days suspended. Appellant was also placed
on two years probation and ordered to complete a sex offender program. Appellant was
also ordered to register as a Tier 1 Sexual Offender for fifteen (15) years and have no
contact with the victim.
{¶17} Appellant now appeals, raising the following errors for review:
ASSIGNMENTS OF ERROR
{¶18} “I. THE STATE FAILED TO PRESENT SUFFICIENT EVIDENCE TO
SUSTAIN A CONVICTION AGAINST THE APPELLANT, AND THE CONVICTION MUST
BE REVERSED.
{¶19} “II. THE APPELLANT'S CONVICTION WAS NOT SUPPORTED BY THE
MANIFEST WEIGHT OF THE EVIDENCE PRESENTED, AND MUST BE REVERSED.”
I., II.
{¶20} In his first and second assignments of error, Appellant argues his conviction
is not supported by the manifest weight or sufficiency of the evidence. We disagree.
{¶21} In determining whether a verdict is against the manifest weight of the
evidence, the appellate court acts as a thirteenth juror and “in reviewing the entire record,
weighs the evidence and all reasonable inferences, considers the credibility of witnesses,
and determines whether in resolving conflicts in evidence the jury ‘clearly lost its way and
created such a manifest miscarriage of justice that the conviction must be reversed and
Stark County, Case No. 2021CA00154 6
a new trial ordered.’ ” State v. Thompkins, 78 Ohio St. 3d 380, 387,
1997-Ohio-52,
678
N.E.2d 541, quoting State v. Martin,
20 Ohio App. 3d 172, 175,
485 N.E.2d 717 (1983).
{¶22} On review for sufficiency, a reviewing court is to examine the evidence at
trial to determine whether such evidence, if believed, would support a conviction. State v.
Jenks, 61 Ohio St.3d 259,
574 N.E.2d 492 (1991). "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. at paragraph two of the syllabus, following Jackson v. Virginia,
443 U.S. 307,
99 S.Ct.
2781,
61 L.Ed.2d 560 (1979).
{¶23} Appellant herein was convicted of Voyeurism, in violation of R.C.
§2907.08(B), which provides:
No person, for the purpose of sexually arousing or gratifying the
person's self, shall commit trespass or otherwise surreptitiously invade the
privacy of another to videotape, film, photograph, or otherwise record the
other person in a state of nudity.
{¶24} Appellant argues that the state failed to prove that he was the one who used
the cell phone to videotape M.P. or that he had done so for the purpose of sexual arousal
or gratification.
{¶25} R.C. §2901.22(A) states:
A person acts purposely when it is the person's specific intention to
cause a certain result, or, when the gist of the offense is a prohibition against
conduct of a certain nature, regardless of what the offender intends to
Stark County, Case No. 2021CA00154 7
accomplish thereby, it is the offender's specific intention to engage in
conduct of that nature.
{¶26} “Surreptitious” is defined in Black's Law Dictionary as “(Of conduct)
unauthorized and clandestine; done by stealth and without legitimate authority.” Black's
Law Dictionary, surreptitious (11th Ed. 2019).
{¶27} Upon review, we find that the state introduced legally sufficient evidence to
support Appellant’s voyeurism conviction.
{¶28} The State presented evidence that the phone with video recordings on it
was found in Appellant’s book bag, and that the phone had been hidden in a hallway
closet only used by Appellant and pointed in the direction of M.P.’s bedroom. Testimony
was also presented that no other men were in the house during the time periods when
these videos were taken. The state also presented evidence via the testimony of M.P.,
S.P. and Jennifer that the man in the video recordings was Appellant based on his voice,
his legs, his ears, etc. Further, testimony by Dep. House described Appellant’s statements
as inconsistent and backtracking. (T. at 240).
{¶29} Additionally, Det. Johnson explained that in his experience, such recordings
are made and used for the purpose of sexual gratification. (T. at 264).
{¶30} The trier of fact may infer a person's intent from the surrounding facts and
circumstances. (State v. Lott (1990), 51 Ohio St.3d 160, 168,
555 N.E.2d 293; State v.
Horrigan (Feb. 19, 1999), 2nd Dist. No. 17260).
{¶31} Courts have held that the sexual-arousal and/or gratification element may
be inferred where there is no innocent, i.e., nonsexual, explanation for the offender's
conduct. See, e.g., Huron v. Holsapple (Aug. 8, 1997), 6th Dist. No. E–96–063, 1997 WL
Stark County, Case No. 2021CA00154 8
457971, at *3 (offender was caught “looking at the victim through her window during a
time in the morning when the victim, a fourteen-year-old girl, was dressing for school”);
State v. Million (1989), 63 Ohio App.3d 349, 351,
578 N.E.2d 869 (evidence that the
offender used a hand-held mirror to look into an adjacent bathroom stall would support
an inference of a purpose of sexual arousal or gratification “since innocent explanations
for his behavior do not readily come to mind”).
{¶32} Courts have also found a purpose to sexually arouse or self-gratify in cases
where a voyeur kept autoerotic materials in his car while he peered through a home's
window, (State v. Haldeman (Nov. 22, 2000), 2nd Dist. No. 18199, 2000 WL 1726858),
where a voyeur repeatedly peered through a home's window while apparently
masturbating, (State v. Gonzales (Mar. 12, 1999), 6th Dist. No. WD–98–057,
1999 WL
128580) , and where a voyeur climbed a ladder to peer through a window and watch a
young girl as she dressed for school. (Huron v. Holsapple (Aug. 8, 1997), 6th Dist. No.
E–96–063,
1997 WL 457971).
{¶33} Here, as set forth above, the state presented evidence that Appellant
videotaped M.P without her knowledge or permission when she was dressing and/or
undressing. Appellant then kept the video recordings on a secret cell phone he kept
hidden in his work bag. Given Appellant's secretive tactics and the nature of the sexually
explicit material, the trier of fact could have reasonably inferred that Appellant's acts were
done for the purpose of sexual arousal or self-gratification.
{¶34} While Appellant argues that S.P. and M.P.’s testimony was “tainted with
anger and revenge for Appellant”, the weight to be given to the evidence and the credibility
of the witnesses are issues for the trier of fact. State v. Jamison, 49 Ohio St.3d 182, 552
Stark County, Case No. 2021CA00154
9
N.E.2d 180 (1990). 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, 418,
674 N.E.2d 1159 (1997). We
note circumstantial evidence is that which can be "inferred from reasonably and justifiably
connected facts." State v. Fairbanks,
32 Ohio St.2d 34,
289 N.E.2d 352 (1972), paragraph
five of the syllabus. "[C]ircumstantial evidence may be more certain, satisfying and
persuasive than direct evidence." State v. Richey,
64 Ohio St.3d 353,
1992-Ohio-44,
595
N.E.2d 915. It is to be given the same weight and deference as direct evidence. State v.
Jenks,
61 Ohio St.3d 259,
574 N.E.2d 492 (1991).
{¶35} Accordingly, we conclude that the evidence, if believed, established that
Appellant surreptitiously invaded M.P.'s privacy by videotaping, filming, photographing,
otherwise recording, or spying or eavesdropping upon her in her own home with the use
of a cell phone for the purpose of sexually arousing or gratifying himself. We hold that the
evidence was sufficient to support Appellant's conviction for voyeurism under R.C.
§2907.08(B). Furthermore, we cannot say that the trier of fact clearly lost its way or that
it created a manifest miscarriage of justice. This is not the exceptional case where the
evidence weighs heavily against conviction
Stark County, Case No. 2021CA00154 10
{¶36} Appellant’s assignments of error are overruled.
{¶37} For the reasons stated in the foregoing opinion, the judgment of the Canton
Municipal Court, Stark County, Ohio, is affirmed.
By: Wise, J.
Hoffman, P. J., and
Baldwin, J., concur.
JWW/kw 1103
