[Cite as State v. Briggs,
2024-Ohio-5155.]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
ALLEN COUNTY
STATE OF OHIO,
CASE NO. 1-23-70
PLAINTIFF-APPELLEE,
v.
PHILLIP J. BRIGGS, OPINION
DEFENDANT-APPELLANT.
Appeal from Allen County Common Pleas Court
Trial Court No. CR2023 0022
Judgment Affirmed
Date of Decision: October 28, 2024
APPEARANCES:
Kenneth J. Rexford for Appellant
John R. Willamowski, Jr. for Appellee
Case No. 1-23-70
ZIMMERMAN, J.
{¶1} Defendant-appellant, Phillip J. Briggs (“Briggs”), appeals the October
12, 2023 judgment entry of sentence of the Allen County Court of Common Pleas.
For the reasons that follow, we affirm.
{¶2} On March 16, 2023, the Allen County Grand Jury indicted Briggs on
five counts of illegal use of a minor in nudity-oriented material in violation of R.C.
2907.323(A)(1), (B), all second-degree felonies.
{¶3} On March 20, 2023, Briggs filed a motion to dismiss the indictment and
argued that the alleged offenses should have been charged as five counts of
voyeurism in violation of R.C. 2907.08(C), (E)(5), all fifth-degree felonies. The
trial court denied Briggs’s motion.
{¶4} On March 22, 2023, Briggs entered written pleas of not guilty to all five
counts of the indictment.
{¶5} On August 29, 2023, the State moved to amend the date range of the
alleged offense in Count One of the indictment, which the trial court granted.
{¶6} On August 31, 2023, the State moved to dismiss Counts Two, Three,
Four, and Five of the indictment, which the trial court granted. The case then
proceeded to a bench trial on amended Count One. No witnesses testified at the
bench trial. Instead, 38 exhibits, including 71 written stipulations, were jointly
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offered and admitted into evidence. The parties made closing arguments and the
trial court took the matter under advisement.
{¶7} On September 8, 2023, the trial court found Briggs guilty of amended
Count One of illegal use of a minor in nudity-oriented material in violation of R.C.
2907.323(A)(1), a second-degree felony.
{¶8} On October 12, 2023, the trial court sentenced Briggs to a minimum
term of four years in prison to a maximum term of six years in prison.
{¶9} On October 26, 2023, Briggs filed a notice of appeal. Briggs raises
three assignments of error for our review. For ease of discussion, we will begin our
review by addressing Briggs’s second and third assignments of error together,
followed by his first assignment of error.
Second Assignment of Error
The Trial Court erred in finding Mr. Briggs guilty of the indicted
offense, as this verdict was not supported by sufficient evidence.
Third Assignment of Error
The Trial Court erred in finding Mr. Briggs guilty of the indicted
offense, as this verdict was against the manifest weight of the
evidence.
{¶10} In his second and third assignments of error, Briggs argues that his
conviction of illegal use of a minor in nudity-oriented material is based on
insufficient evidence and is against the manifest weight of the evidence. In
particular, Briggs argues that the State produced insufficient evidence that he
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“transferred” any “material” to another person. (Appellant’s Brief at 18).
Moreover, Briggs argues that his conviction is against the manifest weight of the
evidence because there is no evidence of “any intent to transmit the video to another
or to otherwise create an artist’s work.” (Id. at 20).
Standard of Review
{¶11} Manifest “weight of the evidence and sufficiency of the evidence are
clearly different legal concepts.” State v. Thompkins, 78 Ohio St.3d 380, 389
(1997). Thus, we address each legal concept separate.
{¶12} “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.” State v. Jenks, 61 Ohio
St.3d 259 (1981), paragraph two of the syllabus, superseded by state constitutional
amendment on other grounds as stated in State v. Smith,
80 Ohio St.3d 89, 102
(1997), fn. 4. Accordingly, “[t]he 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.”
Jenks, 61 Ohio St.3d at paragraph two of the syllabus.
{¶13} “In deciding if the evidence was sufficient, we neither resolve
evidentiary conflicts nor assess the credibility of witnesses, as both are functions
reserved for the trier of fact.” State v. Jones, 2013-Ohio-4775, ¶ 33 (1st Dist.). See
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also State v. Berry, 2013-Ohio-2380, ¶ 19 (3d Dist.) (“Sufficiency of the evidence is
a test of adequacy rather than credibility or weight of the evidence.”).
{¶14} On the other hand, in determining whether a conviction is against the
manifest weight of the evidence, a reviewing court must examine 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.’” Thompkins, 78 Ohio
St.3d at 387, quoting State v. Martin,
20 Ohio App.3d 172, 175 (1st Dist. 1983). A
reviewing court must, however, allow the trier of fact appropriate discretion on
matters relating to the weight of the evidence and the credibility of the witnesses.
State v. DeHass,
10 Ohio St.2d 230, 231 (1967).
{¶15} When applying the manifest-weight standard, “[o]nly
in exceptional cases, where the evidence ‘weighs heavily against the conviction,’
should an appellate court overturn the trial court’s judgment.” State v. Haller, 2012-
Ohio-5233, ¶ 9 (3d Dist.), quoting State v. Hunter, 2011-Ohio-6524, ¶ 119.
Sufficiency-of-the-Evidence Analysis
{¶16} Briggs was convicted of illegal use of a minor in nudity-oriented
material under R.C. 2907.323(A)(1), which provides as follows:
(A) No person shall do any of the following:
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(1) Photograph any minor or impaired person who is not the person’s
child or ward in a state of nudity, or create, direct, produce, or transfer
any material or performance that shows the minor or impaired person
in a state of nudity, unless both of the following apply:
(a) The material or performance is, or is to be, sold, disseminated,
displayed, possessed, controlled, brought or caused to be brought into
this state, or presented for a bona fide artistic, medical, scientific,
educational, religious, governmental, judicial, or other proper
purpose, by or to a physician, psychologist, sociologist, scientist,
teacher, person pursuing bona fide studies or research, librarian,
member of the clergy, prosecutor, judge, or other person having a
proper interest in the material or performance;
(b) The minor’s or impaired person’s parents, guardian, or custodian
consents in writing to the photographing of the minor or impaired
person, to the use of the minor or impaired person in the material or
performance, or to the transfer of the material and to the specific
manner in which the material or performance is to be used.
{¶17} On appeal, Briggs argues that his conviction is based on insufficient
evidence because, even though he created a video of a minor in a full state of nudity,
there is no evidence of “any intent or attempt to transmit the video to another or to
otherwise create an artist’s work.” (Appellant’s Brief at 19). Briggs contends that
he is guilty of “simple [v]oyeurism” since “this was a single video made by one man
and not shared with another person.” (Id.).
{¶18} R.C. 2907.323(A)(1) provides that the offense of illegal use of a minor
in nudity-oriented material can be committed in more than one way. In particular,
the statute makes it unlawful to “[p]hotograph any minor . . . who is not the person’s
child . . . in a state of nudity, or create, direct, produce, or transfer any material or
performance that shows the minor . . . in a state of nudity.” (Emphasis added.) R.C.
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2907.323(A)(1). Thus, in addition to photographing a minor in a state of nudity,
the act of creating, directing, producing, or transferring nudity-oriented material
involving a minor is also illegal under R.C. 2907.323(A)(1).
{¶19} Based on our review of the record, we conclude that the State
presented sufficient evidence to show that Briggs created nudity-oriented material
involving a minor in violation of R.C. 2907.323(A)(1). Here, the parties stipulated
that Briggs used a hidden camera in a bathroom to secretly record a minor in a full
state of nudity. The parties further stipulated that Briggs is not the parent or
guardian of the minor. At the time of the secret recording, Briggs and the minor
lived in the same residence and shared the only bathroom. The minor was unaware
of the hidden camera in the bathroom, and did not know that she was being recorded
while in a full state of nudity.
{¶20} The parties also stipulated that the video was not made “for a bona fide
artistic, medical, scientific, educational, religious, governmental, judicial, or other
proper purpose” and that the minor’s parents had not consented in writing to the
creation of the video. (State’s Exhibit 38). See R.C. 2907.323(A)(1)(a) and (b).
{¶21} After secretly recording the minor in a full state of nudity, Briggs then
transferred the recording from the hidden camera to his laptop computer.
Specifically, Briggs removed the hidden camera from the bathroom, took the hidden
camera to the basement, transferred the contents of the hidden camera onto his
laptop computer, and viewed the video of the minor in a full state of nudity. Briggs
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admitted during a police interview that he viewed the video several times for sexual
gratification.
{¶22} With respect to Briggs’s argument that there is no evidence of any
intent to transfer the video to another person, R.C. 2907.323(A)(1) does not require
that the State prove that Briggs created and transferred the video. Rather, the statute
makes it unlawful to either “create, direct, produce, or transfer” nudity-oriented
material involving a minor. (Emphasis added.) R.C. 2907.323(A)(1). Here, it is
Briggs’s conduct in creating the video that constitutes the illegal use of a minor in
nudity-oriented material.
{¶23} Similarly, we reject Briggs’s argument that he was motivated by
sexual gratification and is guilty of “simple [v]oyeurism.” (Appellant’s Brief at 18).
Sexual-gratification motive is not an element of the offense of illegal use of a minor
in nudity-oriented material. State v. Pritt, 2015-Ohio-2209, ¶ 13 (3d Dist.). Thus,
Briggs’s motivations with respect to the video are not relevant. State v. Martin,
2014-Ohio-3640, ¶ 24 (2d Dist.). It is the creation of the nudity-oriented material
involving a minor that is illegal under R.C. 2907.323(A)(1) and punished more
severely than voyeurism.
“Because of the State interests involved in preventing the exploitation
of children through the creation of nudity-oriented materials in which
they are depicted, the legislature reasonably chose to define the
offense more broadly (i.e., not requiring a trespass or a purpose of
sexual gratification) and to punish the secret imaging of a nude minor
more severely, regardless of the purpose of the offender or the
lewdness of the subject.”
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(Emphasis added.) Pritt at ¶ 13, quoting Martin at ¶ 26.
{¶24} Accordingly, after viewing the evidence in a light most favorable to
the prosecution, we conclude that a rational trier of fact could have found beyond a
reasonable doubt that Briggs created nudity-oriented material involving a minor in
violation of R.C. 2907.323(A)(1). Therefore, Briggs’s illegal-use-of-a-minor-in-
nudity-oriented-material conviction is based on sufficient evidence.
Manifest-Weight-of-the-Evidence Analysis
{¶25} Having concluded that Briggs’s illegal-use-of-a-minor-in-nudity-
oriented-material conviction is based on sufficient evidence, we next address his
argument that his conviction is against the manifest weight of the evidence.
{¶26} On appeal, Briggs argues that his conviction is against the manifest
weight of the evidence because “the defense at trial clearly established a sexual
motivation and an invasion of privacy, neither of which was disputed by the
prosecution.” (Appellant’s Brief at 20). Briggs contends that he is guilty of
voyeurism, not illegal use of a minor in nudity-oriented material.
{¶27} Here, no witnesses testified at the bench trial. This case was decided
by the trial court based on 38 exhibits that included 71 written stipulations. When
viewing the evidence presented by both sides, we conclude that the evidence
summarized in our sufficiency-of-the-evidence analysis supporting Briggs’s illegal-
use-of-a-minor-in-nudity-oriented-material conviction is weightier than the
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evidence against the conviction. Therefore, we cannot say that the trial court lost
its way in considering and weighing the evidence presented. See Thompkins, 78
Ohio St.3d at 387 (stating that a verdict is against the manifest weight of the
evidence if the trier of fact clearly lost its way and created a miscarriage of justice).
{¶28} Even though Briggs argues that he is guilty of voyeurism because there
is evidence of sexual motivation and an invasion of the minor’s privacy, Briggs
disregards the fact that R.C. 2907.323(A)(1) prohibits the creation of nudity-
oriented material involving a minor. Because the evidence demonstrates that Briggs
created a video of a minor in a full state of nudity, we conclude that Briggs’s illegal-
use-of-a-minor-in-nudity-oriented-material conviction is not against the manifest
weight of the evidence.
{¶29} Briggs’s second and third assignments of error are overruled.
First Assignment of Error
The Trial Court erred in denying the defense motion to dismiss
Count I of the Indictment.
{¶30} In his first assignment of error, Briggs argues that the trial court erred
by denying his motion to dismiss the indictment. Specifically, Briggs argues that
he should have been charged with voyeurism as opposed to illegal use of a minor in
nudity-oriented material because “the additional elements of a sexual motivation
and an invasion of privacy” are present in this case. (Appellant’s Brief at 8).
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Standard of Review
{¶31} “‘A motion to dismiss charges in an indictment tests the sufficiency of
the indictment, without regard to the quantity or quality of evidence that may be
produced by either the State or the defendant.’” State v. Carpenter, 2019-Ohio-58,
¶ 87 (3d Dist.), quoting State v. Balo,
2011-Ohio-3341, ¶ 35 (3d Dist.). “‘A
reviewing court must examine the face of the charging instrument to determine its
sufficiency.’”
Carpenter at ¶ 87, quoting
Balo at ¶ 35.
{¶32} “‘In determining whether an indictment is valid on its face, the proper
inquiry is whether the allegations contained in the indictment constitute an offense
under Ohio law.’” State v. Robertson, 2015-Ohio-1758, ¶ 16 (3d Dist.), quoting
State v. Egler,
2008-Ohio-4053, ¶ 14 (3d Dist.). “‘A motion to dismiss an
indictment cannot properly be granted where the indictment is valid on its face.’”
Robertson at ¶ 16, quoting
Egler at ¶ 14.
{¶33} We review a trial court’s denial of a motion to dismiss an indictment
under a de novo standard of review. Carpenter at ¶ 88. “‘De novo review is
independent, without deference to the lower court’s decision.’”
Robertson ¶ 17,
quoting State v. Hudson,
2013-Ohio-647, ¶ 27 (3d Dist.).
Analysis
{¶34} Under Crim.R. 7(B), an indictment
may be made in ordinary and concise language without technical
averments or allegations not essential to be proved. The statement
may be in the words of the applicable section of the statute, provided
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the words of that statute charge an offense, or in words sufficient to
give the defendant notice of all the elements of the offense with which
the defendant is charged. . . . Each count of the indictment or
information shall state the numerical designation of the statute that the
defendant is alleged to have violated.
{¶35} In this case, the indictment alleges that Briggs “did create, direct,
produce, or transfer material or performance that showed a minor in a state of
nudity.” (Doc. No. 9). The language of the indictment tracks the language of R.C.
2907.323(A)(1) which states that “[n]o person shall . . . create, direct, produce, or
transfer any material or performance that shows the minor . . . in a state of nudity.”
Moreover, the indictment contains the numerical designation of the statute which
Briggs is alleged to have violated. Accordingly, we conclude that the indictment is
valid on its face.
{¶36} Nevertheless, Briggs argues that the trial court erred by denying his
motion to dismiss because he should have been charged with voyeurism under R.C.
2907.08(C) and not illegal use of a minor in nudity-oriented material under R.C.
2907.323(A)(1). Briggs contends that “[t]he offenses are identical except for the
inclusion of the additional elements of sexual gratification as a purpose and privacy
invasion.” (Appellant’s Brief at 6).
{¶37} Voyeurism is prohibited under R.C. 2907.08(C) as follows:
No person shall knowingly commit trespass or otherwise secretly or
surreptitiously videotape, film, photograph, broadcast, stream, or
otherwise record a minor, in a place where a person has a reasonable
expectation of privacy, for the purpose of viewing the private areas of
the minor.
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Moreover, a violation of R.C. 2907.08(C) is a fifth-degree felony. See R.C.
2907.08(E)(A).
{¶38} Even though voyeurism under R.C. 2907.08(C) and illegal use of a
minor in nudity-oriented material under R.C. 2907.323(A)(1) prohibit similar
conduct (i.e., the recording of a minor in a state of nudity), the two statutes are not
in conflict. Voyeurism requires the elements of criminal trespass and purposeful
intent. In contrast, the offense of illegal use of a minor in nudity-oriented material
does not require either of these elements.
{¶39} Furthermore, where two statutes prohibit similar conduct, there is no
requirement that the State prosecute under the statute with the lower penalty. State
v. Swift, 2023-Ohio-1435, ¶ 14 (3d Dist.). “‘The mere fact that [a defendant’s]
conduct violates more than one statute does not force the state to prosecute him
under the lesser statute.’”
Id., quoting State v. Cooper,
66 Ohio App.3d 551, 553
(4th Dist. 1990).
“[W]hen an act violates more than one criminal statute, the
Government may prosecute[ ] under either so long as it does not
discriminate against any class of defendants. . . . Whether to prosecute
and what charge to file or bring before a grand jury are decisions that
generally rest in the prosecutor’s discretion.”
Swift at ¶ 14, quoting United States v. Batchelder,
442 U.S. 114, 123-124 (1979).
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{¶40} Based on the foregoing, we conclude that the trial court did not err
when it denied Briggs’s motion to dismiss the indictment since the indictment is
valid on its face.
{¶41} Briggs’s first assignment of error is overruled.
{¶42} Having found no error prejudicial to the appellant herein in the
particulars assigned and argued in assignments, we affirm the judgment of the trial
court.
Judgment Affirmed
WALDICK and MILLER, J.J., concur.
/hls
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