The record before us contains ample circumstantial evidence on the issue of Plymale’s recklessness. He parked his vehicle beside a heavily traveled public road in a public park. Officer Watkins was able to walk up to the truck and observe Plymale masturbating.
State v. Plymale
2021 – Ohio – 2918
Fifth District Appellate Court
Delaware County, Ohio
August 24, 2021
On Sunday June 14, 2020 at approximately 5:25 p.m. Preservation Parks of Delaware County Park Police Officer Chad Watkins was patrolling Deer Haven Park and noticed a pickup truck parked illegally in a spot reserved for maintenance vehicles. The location was a small maintenance area just off of Liberty Road, which used to be a pet trail before the park was converted. This area will soon be known as a pet-peeve to Mr. George Plymale. Officer Watkins testified that the pickup truck was parked about a vehicle-and-a-half length off of Liberty Road, and was easily visible from Liberty Road and by houses across the street.
Mr. Plymale was masturbating in his pickup truck parked just off of Liberty Road in Delaware County, Ohio. He argued that his masturbation did not rise to the Reckless standard in the Ohio Revised Code because his parking spot was secluded.
Officer Watkins noted that Liberty Road is a fairly busy road with increasingly heavy traffic due to the increased population of the Delaware County area. Deer Haven Park has seen a significant increase in traffic with 500 to 600 vehicles on the weekends. The opportunity to see Mr. Plymale would be a central issue in his appeal.
Officer Watkins parked diagonally behind Mr. Plymale’s pickup truck and approached along the passenger side. Officer Watkins explained that when he first pulled up, he could not see if anyone was in the truck because Mr. Plymale had personal items piled-up in the truck bed. As Officer Watkins approached the pickup, he saw Mr. Plymale with his penis exposed and he was masturbating. When Mr. Plymale saw Officer Watkins, he covered his penis and put his hands under his legs in a feeble attempt to conceal the co-conspirators. Mr. Plymale admitted to the officer that he was masturbating as all other excuses would be soft.
Officer Watkins asked Mr. Plymale if he had any weapons in the car. Mr. Plymale responded that he did not; however Officer Watkins noticed a pocket knife next to him in the car. Two or three times Officer Watkins asked Mr. Plymale to exit the car; however, Mr. Plymale refused. Mr. Plymale told the officer not to search his truck. Mr. Plymale reached for his keys a couple of times. Officer Watkins believed that Mr. Plymale was going to attempt to flee, so he asked for backup officers to make an emergency response. Mr. Plymale gave the officer his identification just before back-up arrived. When back-up arrived, Mr. Plymale stepped out of the vehicle. Mr. Plymale was searched and detained in the back of the patrol car.
Prior to trial, Mr. Plymale dismissed one appointed counsel and moved to proceed pro se [represent himself]. At the final pre-trial hearing, the trial court engaged in a lengthy colloquy about the dangers of self-representation. Mr. Plymale then knowingly waived his right to counsel and represented himself at trial, with standby counsel assigned.
Mr. Plymale testified in narrative form, focusing his argument that his masturbation was not reckless because it would not be seen by anyone. Mr. Plymale indicated that he parked in that location because it was clearly a deserted area with untrampled grass and no signs that anybody used it as a trail. The area had a maintenance sign and looked like it was just used as a turnaround. Mr. Plymale thought it would be a private spot … right up until Officer Watkins saw something in plain view he did not want to see. Mr. Plymale testified that he did not think it was a public area because the sign said maintenance vehicles only. Of course, the sign excluded any mention of a masturbation only area.
Mr. Plymale further testified that he initially stopped just to check his phone because he was looking for a job. Interestingly if he was looking for a job on his phone then why would he spent so much time explaining the area was secluded? Mr. Plymale admitted that he was masturbating when Officer Watkins asked him what he was doing. Mr. Plymale did not believe the officer saw his penis. Perhaps Mr. Plymale was able to able to conceal it with minimal covering? Mr. Plymale thought Officer Watkins believed he was concealing drugs. Mr. Plymale laughed and told Officer Watkins he was masturbating and that was his dick. Mr. Plymale did not get out of the car right away because he did not think it was a lawful stop and perhaps standing in that moment may have been challenging.
Mr. Plymale was given a summons for public indecency in violation of § O.R.C. 2907.09(A)(2), a third-degree misdemeanor and released with a stiff warning not to be a recidivist.
Mr. Plymale selected a trial jury and was found guilty with one count of public indecency pursuant to § O.R.C. 2907.09(A)(3), which states: “[N]o person shall recklessly * * * 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 or masturbation.”.
Mr. Plymale argues that the state failed to prove that his conduct was likely to be viewed by others in his physical proximity. Additionally, he argues that the state failed to prove that he was reckless. As a result, Mr. Plymale argues that the conviction was not supported by sufficient evidence and was against the manifest weight of the evidence.
“A person acts recklessly when, with heedless indifference to the consequences, he perversely disregards a known risk that his conduct is likely to cause a certain result or is likely to be of a certain nature. 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.” O.R.C. § 2901.22(C).
The Fifth District Appellate Court held “The record before us contains ample circumstantial evidence on the issue of Plymale’s recklessness. He parked his vehicle beside a heavily traveled public road in a public park. Officer Watkins was able to walk up to the truck and observe Plymale masturbating.”.
In short, the Fifth District Appellate Court determined George did not have a happy ending.
Information for this article was obtained from State v. Plymale, 2021 – Ohio – 2918. This case was decided by the Fifth District Appellate Court and is binding in Ashland, Coshocton, Delaware, Fairfield, Guernsey, Holmes, Knox, Licking, Morgan, Morrow, Muskingum, Perry, Richland, Stark and Tuscarawas Counties.
Lessons Learned:
- Officer Watkins’ articulation was key to the success of the case. He described how close Mr. Plymale parked to Liberty Road which is heavily traveled and the increased number of visitors to Deer Haven Park. He further explained the proximity to houses across the street from where Mr. Plymale was masturbating. All these factors were critical in the appellate court upholding Mr. Plymale’s conviction.
- Any future public masturbater is going to have significant legal challenges to argue that open self-gratification will not rise to the level of Recklessness for purpose of the O.R.C. § 2907.09(A)(3). As an ordinary observer can be found most everywhere it is lawful to publicly dwell.
- Though the court did not address the initial detention of Mr. Plymale, I would like to point out that where Officer Watkins parked his cruiser is instructive. The court specifically states “Officer Watkins parked diagonally behind Mr. Plymale’s pickup truck and approached along the passenger side.”. If Mr. Plymale was parked illegally in the maintenance vehicle only parking then his immediate detention is lawful. However, if Mr. Plymale was parked in a legal spot, without more information, such as a known caller that the occupant was involved in criminal activity, Officer Watkins would not have been able to block his pickup. Of course, this incident was different because Mr. Plymale was parked illegally. I point this out because often law enforcement is always closely evaluated and where an officer parks his cruiser can be the difference between a successful and failed prosecution.
- Plymale testified in trial that he parked in the maintenance only parking to look for a job on his phone. Once he does apply for a new job he will now have a criminal conviction to explain – thanks to the excellent work by Officer Watkins.
Does your agency train on Laws of Arrest?
Don’t fail your training.
Don’t let your training fail you!
Be safe, smart and Objectively Reasonable!