Mr. Imboden argued his genitalia was not observable to the witnesses because they were too far away to provide an accurate description.
Mr. Imboden’s act to expose himself did not occur as a result of some accidental, momentary exposure while walking through his home, but rather occurred for a prolonged period of time (over 30 minutes) in view of anyone who may use the public roadway.
State v. Imboden
2022 – Ohio – 4580
Fourth District Appellate Court
Ross County, Ohio
December 14, 2022
At trial, Mr. Imboden’s neighbor, Holly Burger, testified she has lived in her neighborhood for 14 years with her husband, Tom Burger. Lisa Wiseman lives next door to the Burgers and Mr. Donald Imboden lives directly across the street from Wiseman. Holly Burger stated that on November 18, 2019, she left for work at approximately 7:30 a.m., but before that she looked from her house and observed Mr. Imboden stand naked behind a front door window. The state showed Holly Burger photographs taken by Tom Burger, zoomed to 30-times magnification, and she testified the photographs accurately depict Mr. Imboden unclothed inside his doorway.
On cross-examination, Holly Burger identified (1) an aerial photograph that depicts the location of neighborhood houses, and (2) a photograph from Ross County Sheriff’s Deputy Craig Montgomery’s body camera, captured when Montgomery interviewed her husband, that depicts her living room and the view from her window.
Tom Burger testified that at daybreak on the morning in question, he could see light inside Mr. Imboden’s house, he could see Mr. Imboden stand naked inside his house near his front door, and he could see Mr. Imboden’s penis. Burger grabbed his camera, walked to a window and took photographs. Although Burger zoomed to 30-times magnification, he testified that he could have also seen the same image with his naked eye. Shortly thereafter, Burger contacted the Ross County Sheriff’s Department and provided the photographs to Deputy Montgomery.
On cross-examination, Tom Burger testified he honestly and accurately completed a written incident report and wrote that Mr. Imboden “appeared” to be naked. When questioned more specifically about what he could actually see, Burger responded:
Q. The reason that you got your camera that had a zoom was to see whether he was really naked because you didn’t know whether he was really naked, did you?
A. I knew he was naked, but that was to affirm it, in my opinion.
Q. Okay. Well, let me show you your statement. I am going to hand you what has been marked for identification purposes as Defendant’s Exhibit S-1, and I highlighted in green that you, I think, wrote in your own handwriting. And that says, “I then got my camera that has a zoom to see if he was really naked” – “if he really was naked.” Right? That’s what you said; right?
A. Correct.
Q. Okay.
A. To affirm what I –
Q. Well, you didn’t say to confirm what I thought I saw. You just said “to see if he really was naked”; right?
A. Yes.
Mr. Burger further testified that while he took photographs, he observed neighbor Ms. Lisa Wiseman drive her car down her driveway and face Mr. Imboden’s house.
Lisa Wiseman testified that on the morning in question, while she and Holly Burger texted back and forth between 7:33 a.m. and 7:55 a.m., Ms. Wiseman peeked four times through closed front window blinds and observed Mr. Imboden naked inside his house near his front door. Eventually, Ms. Wiseman got into her car to go to work and stated: “halfway down my driveway I could see one hand rubbing his penis and the other hand he had above his head waving to me … by the time I got to the end of my driveway he had both hands above his head. He wasn’t on the glass but he was kind of up on the glass and had both hands waving in the air to me. At that point I got to the end of my driveway and I put it in park … I got out of my car. I stood in the middle of the street and I yelled at him, ‘You are disgusting. Go back in your house. Nobody wants to see that.’”. Ms. Wiseman reaffirms that there are some things in plain view we do not need to see.
Ms. Wiseman continued: “So I’m standing in the middle of the street … so I pull my cell phone up to try to take pictures and he ran back into the interior of his house.” Later that day, Lisa Wiseman visited the Burger house to discuss the incident. Also, at approximately 7 p.m. that evening, Mr. Imboden came to Wiseman’s house and told her to not worry because he would never do anything like that again, that he is not that type of person, and he referred to his actions as silly.
During cross-examination, Ms. Wiseman testified that, although she and Mr. Imboden talked for approximately 10 minutes, she only provided to the prosecution an edited, 40-second segment of her recorded conversation:
Q. And did it occur to you that he came over just to assure you that you wouldn’t see him naked in his house anymore?
A. No.
Q. Now you’re [sic] recording. Mr. Imboden was at your house a lot longer than that recording; correct?
A. Correct.
Q. And you edited that recording? That wasn’t the entire recording of your entire conversation that you took, was it?
A. That’s correct.
Q. So – and you didn’t give the entire recording that you took to the prosecutor, did you?
A. I don’t believe so. That’s correct.
Q. And so when we asked to see the entire recording, it wasn’t available because it wasn’t in the possession of the State and you knew it wasn’t in the possession of the State; correct?
A. Correct.
Deputy Montgomery testified that the day of the incident he spoke with Tom Burger, Lisa Wiseman and Mr. Imboden. Deputy Montgomery’s body camera also recorded his interaction with Mr. Imboden. When Mr. Imboden invited Deputy Montgomery into his home, Deputy Montgomery explained that he had received a complaint about Mr. Imboden exposing himself in the mornings. Mr. Imboden responded, “Why would someone be watching me from inside my house?” When Deputy Montgomery asked Mr. Imboden several times why he stood at his front door with penis in hand, Mr. Imboden denied doing so, but admitted he sometimes walks naked inside his house. After Deputy Montgomery gave Mr. Imboden a Miranda warning, Mr. Imboden agreed to answer questions and, when he asked what the charge would be, Deputy Montgomery told Mr. Imboden he would not be charged. After Mr. Imboden asked Montgomery several times if the reason for their discussion is to have Mr. Imboden stop standing in his window, Montgomery repeatedly asked Mr. Imboden why he stands in his window and exposes himself. Mr. Imboden then replied, “I don’t do that, I don’t walk around exposing myself.” Deputy Montgomery then raised his voice and threatened to take Mr. Imboden to jail.
Eventually, Montgomery calmed down and asked, “Why are you standing in front of your door like that?” Mr. Imboden hesitated to respond, then replied, “I don’t know. What I don’t understand is why is someone watching me from inside my house?” and “It won’t happen again.” Mr. Imboden also stated “Well, I didn’t know anybody was watching. I didn’t know I had an audience.”
At the close of the state’s case, Mr. Imboden made a Crim.R. 29 motion for a judgment of acquittal on the grounds that the state did not prove the “physical proximity” element of public indecency. In particular, Mr. Imboden argued the great distances that exist between neighborhood houses, and the fact that Tom Burger used a magnification lens to confirm Mr. Imboden’s appearance, supported his motion. In short, Mr. Imboden legal position is that his genetilia was not observable. The trial court, however, denied the motion.
For his defense, Mr. Imboden called James Longerbone, a retired Columbus police officer who now is a consultant and private investigator. Mr. Longerbone testified that during his career he photographed and measured crime scenes and, at Mr. Imboden’s attorney’s request, visited Mr. Imboden’s neighborhood and took measurements. Mr. Longerbone identified courthouse maps, an aerial photograph, and the photographs he took of Mr. Imboden’s neighborhood. Mr. Longerbone photographed Mr. Imboden’s front door, the view north and east that shows a mound on the side of Mr. Imboden’s property, and the view from Mr. Imboden’s front door to the Wiseman and Burger houses.
Mr. Longerbone further testified that he reviewed Tom Burger’s magnified photographs and determined how close he had to be physically to Mr. Imboden’s front door to view the same depiction portrayed in the magnified images, but with unaided vision. To mimic the photos, Mr. Longerbone stated he had to be 27 yards from Mr. Imboden’s front door to observe the exact image depicted in the magnified photographs.
Next, William Strickland, a digital photography expert, testified he examined the magnified photographs that included the meta data of each image. Mr. Strickland identified Mr. Burger’s camera, the relevant meta data of the photographs, and the sequence of several images that Mr. Burger captured. Mr. Strickland explained that (1) meta data provides information about how the camera took the photograph, (2) Mr. Burger’s camera, a Fuji FinePix HS110 HS11, has a zoom range of 24 to 720, and (3) 24 millimeter is a normal wide angle, 50 millimeter is what people can see with their eyes, and 720 millimeter is a 30X magnification factor. Mr. Stickland visited Mr. Imboden’s property and determined that Mr. Burger used 30-times magnification for his photographs. Strickland explained that, if a photographic image is magnified 30 times, it means that a person sees it magnified 30 times to what it would be if not zoomed. In other words, whatever is photographed will be seen as if it is 30 times closer. Mr. Strickland prepared two exhibits to show the difference between an image magnified 30 times and an image observed by a human eye with normal vision, both looking from the edge of the road to Mr. Imboden’s property. When Mr. Strickland took the “normal vision” photograph, Mr. Imboden stood at the door and wore a shirt with a logo and, at that distance, Mr. Strickland could not read the logo and could not determine Mr. Imboden’s gender. Mr. Strickland also testified that he went to great effort to present to the jury fair and accurate information, and that he offered his opinions with a reasonable degree of scientific accuracy.
After hearing the evidence, counsels’ arguments, and after deliberation, the jury found Mr. Imboden guilty as charged. The trial court sentenced Mr. Imboden to serve 12 months community control and pay a $100 fine. This appeal followed.
Appeal
In his third assignment of error, Mr. Imboden asserts the prosecution adduced insufficient evidence as a matter of law to prove, beyond a reasonable doubt, the elements of the crime of public indecency. In particular, Mr. Imboden argues that he did not exhibit his unclothed body under circumstances likely to be viewed by, and in physical proximity to, others.
The offense of public indecency is set forth in O. R.C. §2907.09(A)(1):
(A) 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:
(1) Expose the person’s private parts … The culpable mental state for this offense is “recklessly” andis defined in R.C. 2901.22(C): (C) A person acts recklessly when, with heedless indifference to the consequences, the person disregards a substantial and unjustifiable risk that the person’s 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, the person disregards a substantial and unjustifiable risk that such circumstances are likely to exist. Because the term physical proximity is not defined in the statute, courts will generally apply the common, ordinary meaning: Revised Code Section 2907.09 does not define “physical proximity.” Therefore, we apply its common, ordinary meaning. See Cincinnati Metro. Hous. Auth. v. Edwards, 174 Ohio App.3d 174, 2007-Ohio-6867, 881 N.E.2d 325, ¶ 19 (1st Dist.). “Physical” means “[o]f, relating to, or involving someone’s body as opposed to mind” and “proximity” means “[t]he quality, state, or condition of being near in time, place, order, or relation.” Black’s Law Dictionary 1331 and 1421 (10th Ed. 2014). Therefore, we interpret “physical proximity,” as used in R.C. 2907.09, as meaning that the victim is near enough to observe the offender’s private parts. Loudermilk at ¶ 7.
In the case sub judice, to prove each element of the public indecency offense beyond a reasonable doubt, the state had to produce sufficient evidence to establish that Mr. Imboden (1) acted recklessly; (2) exposed his private parts; (3) under circumstances likely to be viewed by others; (4) likely to affront others; and (5) in his physical proximity. After our review of the evidence adduced at trial, we first observe that the testimony reveals that the Burgers observed Mr. Imboden stand naked behind a glass door window inside his house, from inside the Burgers’ home at a distance of 154 yards. The witnesses maintained they could clearly see Mr. Imboden. Nevertheless, although Holly and Tom Burger testified that they could see Mr. Imboden’s genitalia, they also reviewed the 30-times magnified images and testified that those images depict a true and accurate representation of what they observed. However, those somewhat blurry and grainy images do not appear to clearly depict Mr. Imboden’s private parts. Furthermore, Tom Burger conceded on cross-examination that, although he stated that he could see Mr. Imboden naked, in his report he stated that Mr. Imboden appeared to be naked and he needed his zoom lens to “affirm” Mr. Imboden’s nakedness. Therefore, even when viewed in a light most favorable to the prosecution, the Burgers’ testimony contains conflicts and inconsistencies as to whether they could actually see Mr. Imboden’s private parts from their house, some 154 yards away. Consequently, we question whether this testimony meets the “beyond a reasonable doubt” standard that the state must satisfy as to this element of the crime.
However, after we construe all of the evidence adduced at trial in a light most favorable to the prosecution, it does appear that one witness actually observed, unaided and without magnification, Mr. Imboden’s genitalia. Lisa Wiseman stated that she first observed Mr. Imboden from her house and, when she exited her car in the street at a distance of approximately 90 yards, she clearly observed Mr. Imboden’s private parts. Without reference to the magnified photographic images, Ms. Wiseman testified: (1) she peeked through her blinds and could see Mr. Imboden’s penis; and (2) when she drove from her driveway to the street, she exited her car and could see Mr. Imboden’s penis. Therefore, when we view this testimony most favorably to the prosecution, we believe that the state presented sufficient evidence to prove that for an extended period of time Mr. Imboden exposed his genitalia from inside his house visible to anyone on the public road. Thus, the state adduced sufficient evidence that Mr. Imboden exposed his private parts. Wiseman’s testimony constitutes sufficient evidence to establish physical proximity — “near enough to observe the offender’s private parts.” Loudermilk at ¶ 7. Finally, the state satisfied the remaining elements of the statute because (1) the state presented sufficient evidence of an affront, and (2) Mr. Imboden acted recklessly in the public indecency context when he disregarded a “substantial and unjustified risk” that his conduct was likely to be viewed and affront others.
In sum, based upon our review of the evidence adduced at trial, and when the evidence is viewed in a light most favorable to the prosecution, we believe that any rational trier of fact could have found the essential elements of public indecency proven beyond a reasonable doubt. In the case sub judice, Mr. Imboden’s act to expose himself did not occur as a result of some accidental, momentary exposure while walking through his home, but rather occurred for a prolonged period of time (over 30 minutes) in view of anyone who may use the public roadway.
We also again emphasize that, in a prosecution for the public indecency offense, the state must adduce sufficient evidence that a defendant’s exposure is “reckless” and “under circumstances in which the person’s conduct is likely to be viewed by … others,” but it is important to recognize that whether a person actually did observe a defendant’s private parts is immaterial to the R.C. 2907.09 analysis. Instead, what matters is whether the exposure is likely to be viewed by others.
According to the settled case law, whether an offender’s conduct is actually viewed by others is immaterial to the analysis under R.C. 2907.09. It matters not whether others actually viewed the conduct but rather whether such conduct would likely have been viewed by others. (Citations omitted.) State v. Ramey, 10th Dist. No. 11AP-485, 2012-Ohio-1015, ¶ 16 (public masturbation in cubicle at internet café likely to be viewed by others); State v. Goldsmith, 12th Dist. Clermont No. 83-01-002, 1983 WL 4422, *1-2, fn. 1 (person exposed penis 250 yards from public rest area, conviction for indecent exposure lacked sufficient evidence as not likely to be viewed by others even though detective testified open view from vantage points in shrubbery). “‘In order to sustain a conviction for public indecency, it matters not how many people actually view the conduct but whether such conduct would likely be viewed by and affront others.’” State v. Henry, 2002- Ohio-7180, 151 Ohio App.3d 128, ¶ 60 (7th Dist.), quoting Cleveland v. Houston, 8th Dist. No. 65897, 1994 WL 385982. Thus, the prosecution has the burden to prove beyond a reasonable doubt that a defendant’s conduct is likely to be viewed by others, regardless of whether any witnesses actually viewed the conduct.
Once again, we believe that here the prosecution carried its burden. Accordingly, based upon the foregoing reasons, we overrule Mr. Imboden’s third assignment of error. There were more appeals filed by Mr. Imboden but only one is examined herein.
Information for this article was obtained from State v. Imboden, 2022 – Ohio – 4580.
This case was issued by the Fourth District Appellate Court and is binding in the following Ohio Counties: Adams, Athens, Gallia, Highland, Hocking, Jackson, Lawrence, Meigs, Pickaway, Pike, Ross, Scioto, Vinton and Washington.
Lessons Learned:
- The court had to establish that Mr. Imboden violated O.R.C. Public Indecency §2907.09(A)(1): To prove each element of the public indecency offense beyond a reasonable doubt, the state had to produce sufficient evidence to establish that Mr. Imboden (1) acted recklessly; (2) exposed his private parts; (3) under circumstances likely to be viewed by others; (4) likely to affront others; and (5) in his physical proximity. Interestingly, the elements of ‘public’ indecency do not include an element that the person is in ‘public’. Consequently, Mr. Imboden clearly violated each of the elements of §2907.09(A)(1).
- Mr. Imboden and his legal team went to great lengths to establish his defense all the while admitting he was naked in front of his windows. The heart of Mr. Imboden’s argument is that his naked body was too far away from the ‘eye’ witnesses to see his genitalia with the naked eye. This legal argument did not rise to reasonable doubt and he was convicted.
- Mr. Imboden demonstrated his own guilt by his subsequent behavior as identified by the court “[A]t approximately 7 p.m. that evening, Mr. Imboden came to Wiseman’s house and told her to not worry because he would never do anything like that again, that he is not that type of person, and he referred to his actions as silly.”. Why would Mr. Imboden have apologized for his nakedness that he believed no one could see?
- Law enforcement should recognize that a person can be lawfully charged and convicted for ‘public’ indecency if a person is displaying himself in front of his home windows while butt naked.
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