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Date: 03-26-2021
Case Style:
STATE OF OHIO vs. GERALD FORNSHELL
Case Number: C-180267
Judge: Pierre H. Bergeron
Court: IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO
Plaintiff's Attorney: Joseph T. Deters, Hamilton County Prosecuting Attorney, and Scott M. Heenan,
Assistant Prosecuting Attorney
Defendant's Attorney:
OR
Just Call 855-853-4800 for Free Help Finding a Lawyer Help You.
Description:
Cincinnati, OH - Criminal defense attorney represented Gerald Fornshell with a public indecency charge.
{¶2} On the same day, Mr. Fornshell visited two different Half Price Books
stores and masturbated in an aisle at both locations. Mercedes Velez visited those
same stores contemporaneously with Mr. Fornshell. She first encountered him at
the Mason Half Price Books and noticed him staring at her. She left, ran some
errands, and then went to the Madeira Half Price Books store at approximately 8:00
p.m., where she encountered Mr. Fornshell again. This time, he approached her and
asked to video her. She understandably declined and, shortly thereafter, turned to
witness him masturbating in the aisle.
{¶3} Mr. Fornshell was indicted on two counts of public indecency under
R.C. 2907.09(B)(1) and (A)(2). Mr. Fornshell did not dispute the indictment except
to the extent that “any person who was likely to view and be affronted by [Mr.
Fornshell’s] conduct was a minor,” which would elevate his offense to a felony of the
fifth degree. R.C. 2907.09(C)(3). A jury found him guilty of count two, as elevated to
a felony, and the trial court sentenced him to 12 months in prison with credit for 244
days served. He received an additional 12-month term in connection with violating OHIO FIRST DISTRICT COURT OF APPEALS
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the terms of postrelease control on a prior conviction. Mr. Fornshell now appeals
this felony conviction.
II.
{¶4} Mr. Fornshell’s first three assignments of error relate to the evidence
used to convict him. He argues that the state destroyed exculpatory evidence, that
the trial court improperly admitted unfairly prejudicial video evidence depicting
incriminating conduct at another time and location, and that his trial counsel was
ineffective for stipulating to the introduction of that video. His remaining
assignments of error concern the weight and sufficiency of the evidence and the
propriety of his sentence. We first consider the alleged evidentiary errors.
A.
{¶5} Mr. Fornshell moved (unsuccessfully) to dismiss the charges below on
the basis that the state failed to preserve materially exculpatory evidence—namely,
the entire security video footage from the Madeira Half Price Books from the evening
of the incident, framing this as a violation of his Fourteenth Amendment due-process
rights. But this begs two questions—the materiality of the evidence and state action.
{¶6} “Evidence is constitutionally material when it possesses ‘an
exculpatory value that was apparent before the evidence was destroyed, and [is] of
such a nature that the defendant would be unable to obtain comparable evidence by
other reasonably available means.’ ” State v. Powell, 132 Ohio St.3d 233, 2012-Ohio2577, 971 N.E.2d 865, ¶ 74, quoting California v. Trombetta, 467 U.S. 479, 489, 104
S.Ct. 2528, 81 L.Ed.2d 413 (1984). If the evidence in question is only potentially
useful, however, a defendant cannot show a due-process violation without first
demonstrating bad faith on the state’s behalf. State v. Rice, 1st Dist. Hamilton Nos.
C-160668, C-160669 and C-160670, 2017-Ohio-9114, ¶ 13. The defendant bears the OHIO FIRST DISTRICT COURT OF APPEALS
4
burden to show the exculpatory nature of the evidence. State v. Benson, 152 Ohio
App.3d 495, 2003-Ohio-1944, 788 N.E.2d 693, ¶ 11 (1st Dist.).
{¶7} With this standard in mind, Mr. Fornshell cannot satisfy his burden of
demonstrating that the full video footage from the Madeira Half Price Books was
materially exculpatory. The parties do not dispute that the incident occurred in the
self-help section of the store, and that no video camera captured that portion of the
store. Several witnesses, however, vouched for the likelihood of children in the store
at the time of the incident. One Half Price Books employee testified that children
were in the store. The victim, Ms. Velez, echoed the point, confirming that there
were “absolutely” people under the age of 18 in the store at the time of the incident,
and that she “probably” encountered children between the incident and her walk to
report it. The store manager testified that it is possible to see through the shelves in
the self-help area from other sections of the store, including the children’s section, to
which it is adjacent. She also testified that the incident occurred on one of their
biggest sale days of the year, and that they sell “lots” of toys (attracting children and
their parents alike). The manager personally viewed all of the surveillance video
between 7:00 p.m. and 8:00 p.m. the evening of the incident and identified several
distinct, potential minors in the store at or just before the time Mr. Fornshell entered
the store.
{¶8} Mr. Fornshell nevertheless posits that the full store footage could have
isolated minors entering and exiting while he was in the store. But in view of the
litany of evidence above (and in light of our statutory analysis below), we do not
believe that this would exculpate Mr. Fornshell. The jury was shown footage of likely
minors entering the Madeira store before Mr. Fornshell arrived—consistent with the
store manager’s testimony. This evidence undercuts his contention that the full OHIO FIRST DISTRICT COURT OF APPEALS
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video footage would have been exculpatory. Admittedly, it can often be difficult to
establish that evidence that no longer exists is exculpatory, but based on the other
available evidence in the record here, we cannot conclude that Mr. Fornshell can
make such a showing.
{¶9} With the evidence only potentially useful, this obligates Mr. Fornshell
to establish bad faith on the state’s part to succeed with a due-process claim. But this
case involves a third-party (not acting on behalf of the state) disposing of evidence,
rendering it more difficult for Mr. Fornshell to connect the destruction of evidence to
bad faith on the part of the state.
{¶10} Ohio law generally recognizes that the state need not gather evidence
on the defendant’s behalf (but when it does, that is a different story):
Although we agree that is not proper for a law enforcement agency to
suppress evidence, we also conclude that it is not the agency’s
obligation to engage in affirmation action in gathering evidence which
an accused might feel necessary to his defense. The accused must
protect his own interests. It is only when overzealous officials deny
that opportunity can it be said that he is deprived of due process by
state action.
City of Kettering v. Baker, 42 Ohio St.2d 351, 354-355, 328 N.E.2d 805 (1975).1
“ ‘[I]t is not the responsibility of the state to obtain evidence that the defendant can
obtain on his own.’ ” State v. Dinardo, 11th Dist. Lake No. 2013-L-108, 2015-Ohio-
1 The parties debate the significance of two judgment entries that we previously issued, State v.
Kimble, 1st Dist. Hamilton No. C-150655 (June 9, 2017), and State v. Barker, 1st Dist. Hamilton
No. C-130694 (July 10, 2014), but these are not precedential opinions from this court. We
acknowledge the difficulties counsel face when judgment entries address matters on which this
court has not previously opined, but in this case, sufficient caselaw existed from other Ohio courts
to guide our analysis. OHIO FIRST DISTRICT COURT OF APPEALS
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1061, ¶ 25, quoting State v. Franklin, 2d Dist. Montgomery No. 19041, 2002-Ohio2370, ¶ 52 (discussing the state’s burden to obtain 911 tapes).
{¶11} Mr. Fornshell made a demand upon the prosecuting attorney for
videos at the scene and around the time of the arrest, but we cannot construe such a
request to encompass evidence beyond the state’s control. Mr. Fornshell did not
subpoena the Madeira Half Price Books, nor has he pointed to any authority for the
proposition that the Brady doctrine would require the state to secure evidence not in
its possession from third parties. Without state action, the panoply of constitutional
protections generally does not apply. Bouquett v. St. Elizabeth Corp., 43 Ohio St.3d
50, 53, 538 N.E.2d 113 (1989) (appellee required to show state action to “warrant the
constitutional protection of due process”).
{¶12} While we can imagine finding bad faith in a scenario where the state
prevented a defendant from securing evidence from a third-party, that is not the case
here, and Mr. Fornshell has failed to offer proof otherwise of bad faith. Detective
Vogel testified that he promptly asked Half Price books for all pertinent footage; that
he requested “the entire video,” but was told this was nearly impossible. Because the
clips that he received substantiated the victim’s claims, he did not persist for the
entire video footage. Mr. Fornshell argues that this nonchalance rises to the level of
bad faith. But “[b]ad faith implies something more than bad judgment or
negligence,” and we do not see anything more serious on the record before us. See
State v. Acosta, 1st Dist. Hamilton Nos. C-020767, C-020768, C-020769, C-020770
and C-020771, 2003-Ohio-6503, ¶ 9.
{¶13} Without a showing that the evidence at issue was materially
exculpatory or that the state acted in bad faith, (let alone a showing of state action),
we overrule Mr. Fornshell’s first assignment of error. OHIO FIRST DISTRICT COURT OF APPEALS
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B.
{¶14} Mr. Fornshell’s more compelling argument relates not to the video
evidence left out, but to the video evidence allowed in. He insists that the trial court
committed reversible error by admitting video footage from his visit to the Mason
Half Price Books (which was not part of the indictment here). Although the trial
court conceded error on this point, Mr. Fornshell failed to object below.
{¶15} “[T]he trial court enjoys broad discretion in admitting or excluding
evidence. An appellate court will not disturb the exercise of that discretion absent a
showing that the accused has suffered material prejudice.” (Citations omitted.)
State v. Sage, 31 Ohio St.3d 173, 182, 510 N.E.2d 343 (1987). Evidence of “other
acts” is inadmissible to show a defendant’s “character * * * to show conformity
therewith.” Evid.R. 404(B). The Supreme Court of Ohio has set out a three-part test
for admission of “other acts” evidence: it must be (1) “relevant to making any fact
that is of consequence more or less probable than without the evidence,” (2)
presented for a legitimate purpose under Evid.R. 404(B), and (3) admissible under
Evid.R. 403. State v. Williams, 134 Ohio St.3d 521, 2012-Ohio-5695, 983 N.E.2d
1278, ¶ 20. Under Evid.R. 403(A), “[a]lthough relevant, evidence is not admissible if
its probative value is substantially outweighed by the danger of unfair prejudice, of
confusion of the issues, or of misleading the jury.”
{¶16} Here, the jury viewed footage of Mr. Fornshell at the Mason Half Price
Books from earlier in the same evening of the Madeira incident. The video, while not
explicit, is highly suggestive of his conduct in the Madeira store and, critically, also
shows children present during the suggestive conduct. During the jury’s viewing,
Detective Vogel provided additional color by describing the conduct in a way that OHIO FIRST DISTRICT COURT OF APPEALS
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suggests Mr. Fornshell was committing the same offense for which he was indicted in
the Madeira store.
{¶17} Although the trial court judge instructed the jury to consider the
Mason video only for the purposes of corroboration and the credibility of Ms. Velez’s
testimony, after the viewing, the court had second thoughts. Upon reflection, the
trial court judge determined (rightly so) that the video was highly prejudicial and
should never have been shown to the jury. At that point, however, the only curative
step he could take was to forbid the evidence from being reviewed by the jury in its
deliberations (defense counsel did not move for a mistrial). Mr. Fornshell argues
that the evidence was unfairly prejudicial and that his trial counsel was ineffective for
failing to object to it.
{¶18} Notwithstanding the limiting instruction given by the trial court, we
find that the admission of the Mason video fails an Evid.R. 403(A) analysis in that—
to the extent that it had any probative value (and we are skeptical of that)—that value
was substantially outweighed by the dangers flagged in the rule. Since the entire
issue before the jury was whether minors were “likely to view” Mr. Fornshell’s
conduct—a video from the same day, in a bookstore, showing him engaged in likely
inappropriate activity with children in sight poses a substantial “danger of unfair
prejudice.”
{¶19} The problem for Mr. Fornshell, however, is that the video in question
was stipulated to by the parties, which limits Mr. Fornshell’s challenge to plain error.
State v. Gross, 97 Ohio St.3d 121, 2002-Ohio-5524, 776 N.E.2d 1061, ¶ 49 (“In fact,
on one of the transcript pages Gross cites, his counsel stipulates to the admission of
the nine photographs in question. Consequently, Gross has forfeited all but plain OHIO FIRST DISTRICT COURT OF APPEALS
9
error.”), modified on other grounds, State v. Downour, 126 Ohio St.3d 508, 2010-
Ohio-4503, 935 N.E.2d 828, ¶ 49.
{¶20} Under Crim.R. 52(B): “Plain errors or defects affecting substantial
rights may be noticed although they were not brought to the attention of the court.”
State v. Barnes, 94 Ohio St.3d 21, 27, 759 N.E.2d 1240 (2002) (“[Defendant] failed
to object * * * at trial and thereby forfeited all but plain error.”). To demonstrate
plain error, he must show that (1) there was an error, i.e., the court broke a legal rule,
(2) the error was plain, i.e., obvious in the course of the proceedings, and (3) the
error affected substantial rights, i.e., it clearly determined the trial’s outcome. Id. at
27. See State v. Sanders, 92 Ohio St.3d 245, 263, 750 N.E.2d 90 (2001) (“Plain error
exists only when it is clear that the verdict would have been otherwise but for the
error.”); State v. Long, 53 Ohio St.2d 91, 97, 372 N.E.2d 804 (1978) (“Notice of plain
error under Crim.R. 52(B) is to be taken with the utmost caution, under exceptional
circumstances and only to prevent a manifest miscarriage of justice.”); State v.
Webster, 1st Dist. Hamilton No. C-120452, 2013-Ohio-4142, ¶ 41 (quoting Long).
{¶21} The first two prongs of this test are easily met by our preceding Evid.R.
403 analysis and the trial court’s own belated recognition of its mistake. Where Mr.
Fornshell comes up short, however, is the extent to which the video determined his
conviction. His trial counsel admitted Mr. Fornshell’s guilt of the misdemeanor
offense of public indecency described in R.C. 2907.09(A)(2)—the trial strategy
sought to avoid conviction for a felony by challenging the “likely to view”
requirement. We must ask whether, without the Mason video, the jury still would
have found that a minor was likely to view and be affronted by the conduct.
{¶22} As should be apparent from our discussion of the Madeira video
footage and evidence, ample evidence supported Mr. Fornshell’s conviction. OHIO FIRST DISTRICT COURT OF APPEALS
10
Multiple witnesses testified to the presence of children in the store, and to the
proximity of the children’s book section to where Mr. Fornshell lingered too long in
the self-help section. Against the backdrop of this evidence, Mr. Fornshell cannot
show that the admission of the Mason video tipped the balance at trial. Because Mr.
Fornshell cannot show that admission of the Mason video impacted the outcome of
the trial, he cannot succeed on a plain-error challenge. See, e.g., State v. McKelton,
148 Ohio St.3d 261, 2016-Ohio-5735, 70 N.E.3d 508, ¶ 196-197, quoting State v.
Mammone, 139 Ohio St.3d 467, 2014-Ohio-1942, 13 N.E.3d 1051, ¶ 69 (“[A]ny
minimal probative value that [the evidence] may have had was outweighed by the
danger of unfair prejudice. Nevertheless, given the overwhelming evidence of [the
defendant’s] guilt, we are unpersuaded that but for these photos, ‘the outcome of the
trial clearly would have been otherwise.’ ”). We accordingly find no plain error here
and overrule the second assignment of error.
{¶23} In tandem with the above, Mr. Fornshell utilizes the failure to object to
this video as a springboard for questioning his counsel’s effectiveness. To
demonstrate ineffective assistance of counsel, Mr. Fornshell must demonstrate (1)
that his counsel’s ineffectiveness was “so serious that counsel was not functioning as
the ‘counsel’ guaranteed the defendant by the Sixth Amendment” and (2) that his
counsel’s errors were “so serious as to deprive the defendant of a fair trial, a trial
whose result is reliable.” Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct.
2052, 80 L.Ed.2d 674 (1984).
{¶24} In this case, we conclude that the second prong of this analysis is the
functional equivalent to the third prong of the plain-error analysis. Short of affecting
the outcome of his trial, which—due to the wealth of photographic, video, and
testimonial evidence discussed above, it did not—Mr. Fornshell’s trial counsel’s OHIO FIRST DISTRICT COURT OF APPEALS
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errors did not operate to deprive Mr. Fornshell of a fair trial. We accordingly
overrule his third assignment of error.
C.
{¶25} Mr. Fornshell’s fourth and fifth assignments of error target the weight
and sufficiency of the evidence to convict him of the felony charge, i.e., that “any
person who was likely to view and be affronted by [his] conduct was a minor.” R.C.
2907.09(C)(3). Reviewing these arguments, we are mindful that “[t]he verdict will
not be disturbed unless the appellate court finds that reasonable minds could not
reach the conclusion reached by the trier of facts.” (Citation omitted.) State v.
Jenks, 61 Ohio St.3d 259, 273, 574 N.E.2d 492 (1991). “[S]ufficiency is a test of
adequacy” used to determine “ ‘whether the evidence is legally sufficient to support
the jury verdict as a matter of law.’ ” State v. Thompkins, 78 Ohio St.3d 380, 386,
678 N.E.2d 541 (1997), quoting Black’s Law Dictionary 1433 (6th Ed.1990). Weight,
on the other hand, “concerns ‘the inclination of the greater amount of credible
evidence * * * to support one side of the issue rather than the other.’ ” Id. at 387,
quoting Black’s at 1594.
{¶26} Mr. Fornshell’s argument dwells on the fact that the witnesses,
including the victim, did not testify as to seeing a particular child in the vicinity
during the occurrence of the incident. But this sets too high a standard for the “likely
to view” requirement. A conviction for public indecency does not necessitate a
showing that an actual person witnessed the event. See State v. Ramey, 10th Dist.
Franklin No. 11AP-485, 2012-Ohio-1015, ¶ 16 (“It matters not whether others
actually viewed the conduct but rather whether such conduct would likely have been
viewed by others.”); State v. Henry, 151 Ohio App.3d 128, 2002-Ohio-7180, 783
N.E.2d 609, ¶ 70 (7th Dist.) (“[T]he state was not required to prove that anyone was OHIO FIRST DISTRICT COURT OF APPEALS
12
actually offended by [defendant’s] conduct. The state was simply required to prove
that [defendant’s] conduct was likely to be viewed by and affront others.”); City of
Cleveland v. Carson, 8th Dist. Cuyahoga Nos. 66084, 68193 and 68194, 1995 WL
396346, *4 (July 6, 1995) (“We find [likely to be viewed by and affront others] to
mean that the possibility of being discovered by others exists, not that others actually
witnessed the exposure.”).
{¶27} Mr. Fornshell also analogizes to a recent case from this court on the
“likely to be present” standard in the burglary context, State v. Braden, 2018-Ohio563, 106 N.E.3d 827 (1st Dist.). Therein, we held that “likely to be present” means
“ ‘greater than 50% likelihood.’ ” Id. at ¶ 8, quoting In re Meatchem, 1st Dist.
Hamilton No. C-050291, 2006-Ohio-4128, ¶ 17. We found that the standard was not
met in that particular case, where this court had only the victim’s testimony and his
testimony did not show beyond 50 percent certainty that someone was likely to be
present in his home at the time of the burglary. To the extent that our reasoning in a
burglary case assumes relevance in this context, the evidence adduced in this case
presents sufficient “likelihood” that minors would witness the act. Witness
testimony, photographic evidence (showing the proximity from the self-help section
to the children’s section), and video evidence all confirmed that chances were better
than 50 percent that a minor was likely to have been present for Mr. Fornshell’s
conduct if the child had strayed a little from the children’s section. One can certainly
imagine difficult line-drawing situations under the indency statute, but this does not
strike us as one of them.
{¶28} In light of our conclusion on the meaning of the statute, the evidence
we surveyed above readily satisfies the sufficiency and manifest-weight standards.
Mr. Fornshell’s fourth and fifth assignments of error are accordingly overruled. OHIO FIRST DISTRICT COURT OF APPEALS
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D.
{¶29} For his final assignment of error, Mr. Fornshell asserts that the record
does not support the prison sentence imposed. We may reduce or otherwise modify
this sentence only if we find, clearly and convincingly, that his sentence is not
supported by the record or is contrary to law. R.C. 2953.08(G)(2).
{¶30} Initially, the state contends that this aspect of the appeal is moot
because Mr. Fornshell has completed his sentence. The fact that a sentence has run
its course does not necessarily moot the appeal of a felony conviction. State v.
Golston, 71 Ohio St.3d 224, 227, 643 N.E.2d 109 (1994) (“[A]n appeal challenging a
felony conviction is not moot even if the entire sentence has been satisfied before the
matter is heard on appeal.”). However, the principle from the Golston case—that the
collateral consequences of a felony conviction give rise to the right to challenge it—“is
not served, and thus an appeal is moot, when, as here, the appellant challenges only
his sentence, and his completion of his sentence leaves him without a remedy
affecting his conviction.” (Citations omitted.) State v. Ysrael, 1st Dist. Hamilton No.
C-140148, 2015-Ohio-332, ¶ 13. Here, Mr. Fornshell does not challenge any of the
collateral effects of his sentence, but only the fact of the prison sentence itself.
Although this may well be moot, we have no substantiation in the record to establish
that Mr. Fornshell has completed his sentence, and thus we turn to the merits of his
sentencing challenge.
{¶31} Mr. Fornshell points to the failure of the trial court to order a court
clinic evaluation or to impose community control as the basis for overturning his
sentence. Yet he identifies no authority obligating a trial court to allow the court
clinic evaluation to go forward. Relatedly, while he cites R.C. 2929.13(B)(1)(a),
which compels courts to use a community-control sanction or a combination of OHIO FIRST DISTRICT COURT OF APPEALS
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community-control sanctions in certain instances of fourth- and fifth-degree
felonies, he overlooks the exception in (B)(1)(b): “The court has discretion to impose
a prison term upon an offender who is convicted of * * * a felony of the * * * fifth
degree that is not an offense of violence or that is a qualifying assault offense if any of
the following apply: * * * (v) The offense is a sex offense that is a * * * fifth degree
felony violation of any provision of Chapter 2907 of the Revised Code.” That
exception applies here. Nevertheless, the trial court did consider a particular
community-control sanction, but Mr. Fornshell had already completed it. It did not
consider lesser sanctions in light of his past history of similar offenses in Ohio,
Kentucky, and California.
{¶32} Mr. Fornshell also challenges the trial court’s alleged failure to
consider the purposes and principles of sentencing in R.C. 2929.11 and 2929.12. But
our review of the transcript shows to the contrary. The trial court considered his
evidence of mitigation at sentencing, during which he discussed his bipolar disorder,
total disability, and nervous breakdowns. The judge evaluated this and described the
sentencing purposes and principles, and Mr. Fornshell has not adequately
demonstrated any potential flaws in the court’s analysis. We accordingly overrule his
sixth assignment of error.
III.
{¶33} Mr. Fornshell’s assignments of error, considered in the context of the
record as a whole, do not present cause for reversal. We believe Mr. Fornshell was
afforded due process, evidentiary and trial counsel’s errors did not determine the
outcome, the weight and sufficiency of the evidence supported the conviction, and
his sentence is well-grounded in the record and in the law. Therefore, all
assignments of error are overruled and the judgment of the trial court is affirmed. OHIO FIRST DISTRICT COURT OF APPEALS
Outcome: Judgment affirmed.
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