Det. Young testified that the conduct could be viewed by hikers or hunters near the wooded area and anyone on the veranda. Therefore, construing the evidence in a light most favorable to the state, any rational trier of fact could have found that Mr. Breeden’s conduct was likely to be viewed by others.
State v. Breeden
2023 – Ohio – 1872
First District Appellate Court
Hamilton County, Ohio
June 7, 2023
Investigation into Sexual Deviant Behavior Leads to Observation of Sexual Deviant Behavior
Mr. Mandel Breeden was charged with public indecency for engaging in sexual conduct in Mt. Airy Forest. After Mr. Breeden pled not guilty, the case proceeded to a bench trial. Detective Nathaniel Young, a police specialist in the Cincinnati Police Department’s Vice Squad, testified that he was working undercover and investigating complaints of sexually deviant behavior in Mt. Airy Park.
Mr. Manuel Breedon exposed himself in Mt. Airy Park in Cincinnati and made a feeble attempt at defending his actions as only hunters could have observed his sexually deviant behavior. The First District Appellate Court did not accept this defense.
Not Too Cold for Sexually Deviant Behavior
On December 3, 2021, Det. Young was observing the area around Oak Ridge Lodge at 9:30 a.m. [Note: According to www.world-weather.info, extracted September 7, 2023, the high temperature in Cincinnati on this day was 55 degrees and the low was 39 degrees.]
Det. Young observed a man, later identified as Mr. Douglas Witt, masturbating and exposing himself near the lodge. Det. Young watched as Mr. Witt walked down a set of stairs behind the lodge next to a veranda and enter the woods. Mr. Witt went past a sign that said, “Do Not Enter This Area. This is a [sic] Open Area for Hunting.”
There are Some things in Plain View You Do Not Want to See
Det. Young began walking toward the parking lot to update the surveillance team. As he was returning to the team, Mr. Breeden walked past him. Det. Young noted that Mr. Breeden appeared to be “walk[ing] with a purpose” [not a good one] past the veranda, down the steps, and onto the same trail that Mr. Witt had taken. Det. Young began to follow him. When he got to the rock wall where the veranda starts, he could see Mr. Witt standing at a picnic table without his pants and with an erect penis. Although the picnic table was approximately ten yards inside the wood-line, Det. Young could see him clearly because the trees had no leaves.
Det. Young followed Mr. Breeden down the path toward the picnic table and observed Mr. Breeden approach Mr. Witt. Mr. Breeden removed his erect penis from his pants and engaged in anal intercourse with Mr. Witt. At this time, Det. Young was approximately two feet from them. Det. Young recorded the incident on his cell phone, and the state admitted the recording into evidence. The recording did not reflect all of his observations as he was walking around the park because his cell phone was in his pocket.
Hunters, Hikers and Park Walkers
Det. Young testified that the area where the conduct occurred was used by hunters, hikers, people walking around the lodge, people in the immediate parking lot, and park employees. At the time, there were multiple cars in the parking lot and several people walking in the area. Det. Young further testified that anyone on the veranda would be able to see the men because the veranda was elevated and overlooked the picnic table.
LEADS Lead Detectives to Mr. Breeden
Det. Young informed Detective Mary Warner, a second officer on the Vice Squad, of his observations. Det. Warner testified that she ran the license plate number of the car that Mr. Breeden had driven to the park. When she identified his name, she obtained his photo through Facebook, and Det. Young identified him. Later, Det. Warner contacted Mr. Breeden by phone and asked him to come to the police station. When he arrived, Det. Warner served him a citation.
He Went to Trial?
After Warner’s testimony, the trial court found Mr. Breeden guilty.
Mr. Breeden now appeals, and in one assignment of error, he contends that
his conviction for public indecency was not supported by sufficient evidence and ran contrary to the manifest weight of the evidence. In particular, Mr. Breeden argues that his conduct was not likely to be viewed by others.
Public Indecency O.R.C. §2907.09(A)(2) provides that no person shall recklessly engage in sexual conduct “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.” Thus, the state was required to prove that Mr. Breeden:
(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.
State v. Imboden, 2022-Ohio-4580
For more on State v. Imboden, 2022 – Ohio – 4580 see Can a Male be Charged and Convicted for Public Indecency Inside His Own Home?
Was Sexually Deviant Behavior in the Park “Likely to be Viewed” by Others?
The relevant inquiry is whether an offender’s conduct would likely have been viewed by others. See State v. Fornshell, 2021-Ohio-674. It is immaterial whether others actually viewed the conduct.
Is “Only Hunters Could See Me” a Valid Defense?
Mr. Breeden argues that his conduct was not committed under circumstances likely to be viewed by others because the area was secluded and restricted to hunters.
Reviewing the evidence adduced at trial, the testimony reveals that Det. Young had an unobstructed view from the veranda of Mr. Witt standing at a picnic table without his pants on and with an erect penis. Later, Mr. Breeden engaged in sexual conduct at the same picnic table. Additionally, Det. Young testified that the conduct could be viewed by hikers or hunters near the wooded area and anyone on the veranda. Therefore, construing the evidence in a light most favorable to the state, any rational trier of fact could have found that Mr. Breeden’s conduct was likely to be viewed by others.
Was there Enough Foliage to Sustain the Appeal?
Mr. Breeden further argues that Det. Young’s testimony that the picnic table was visible from the veranda should be discounted because the video showed a significant amount of foliage blocking the view. Det. Young’s recording shows the rock wall at the start of the veranda. However, the recording does not depict his visual observations due to the location of the camera in his pocket. The factfinder was free to conclude that Det. Young’s testimony was credible. Based on this record, the factfinder did not clearly lose its way and create a manifest miscarriage of justice.
Having overruled the sole assignment of error, we affirm the trial court’s judgment.
Information for this article was obtained from State v. Breeden, 2023 – Ohio – 1872.
State v. Breeden, 2023 – Ohio – 1872 was issued by the First District Appellate Court on June 7, 2023 and is binding in Hamilton County, Ohio.
- Key to Conviction – Sexual activity in parks is a problem in many communities. When enforcing Public Indecency law enforcement should articulate how the sexual activity was likely to be viewed by visitors to the park. Breeden concocted the legal defense that since he was in a wooded area his sexually deviant behavior was not likely to be viewed by others. This is a similar defense Mr. Imboden raised when he argued that standing butt naked in his own home front window. See Can a Male be Charged and Convicted for Public Indecency Inside His Own Home?
- BOLO – I too worked similar investigations on deviant sexual activity in public parks, specifically the Park of Roses in Columbus, Ohio. What is distinguishable between my experience and this case is the time of the year! This incident occurred in early December … DECEMBER! This factor is demonstrative that deviant sexual behavior can occur anywhere at any time. Perhaps I missed out on December sexually deviant behavior in the park?
- Pre-Sent Arms! Cincinnati Police Detective Nathaniel Young and Detective Mary Warner should be highly commended for their investigation and testimony that led to the conviction for Public Indecency against Mr. Mandel Breeden and the First District Appellate Court upholding the conviction. Well done!
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