pageok
pageok
pageok
Update on the Naked Prosecutor:
I posted last month on the strange case of Scott Blauvelt, an Ohio prosecutor who was charged with public indecency after being seen on videotape walking around the office naked late at night. The latest news in the case is that Blauvelt was fired from his job, and his criminal case was recently dismissed without prejudice. It seems likely that new charges will be filed, however:
  Charges of public indecency were dropped Tuesday against an ex-city prosecutor because of a paperwork problem.
  But officials said they would re-file the case against Scott Blauvelt, who has been accused of walking through public buildings after hours in the nude.
  "A technicality is causing us to re-file the paperwork," Butler County Sheriff's Chief Deputy Anthony Dwyer said Tuesday.
  Blauvelt's lawyer, Mike Gmoser, railed against some officials' use of the term "technicality," and hung up on a reporter who sought more information.
  Blauvelt had pleaded not guilty by reason of insanity to two counts of public indecency in Municipal Court, where he worked from March 2005 until he was fired last month. A judge dismissed the charges Tuesday after authorities acknowledged they were filed under an outdated section of law.
  A city computer system printed out the old law when charges were filed in Blauvelt's case, Dwyer said, and sheriff's Capt. Katie McMahon didn't notice the problem at the time.
  Under an update of the law last year, the offense of public indecency must occur in "physical proximity" to another person who is unrelated to the suspect, officials said. Therefore, Gmoser argues, it is insufficient for a suspect to be caught on videotape, as Blauvelt allegedly was.
  Dwyer said sheriff's officials feel confident that the current, updated law applies to Blauvelt's case. Sheriff's officials reviewed the correct section of law when deciding what charges to lodge, he said.
  I wonder if Dwyer is telling the truth, and the the decision to charge was based on the proper version of the offense. It's certainly possible: officials will often file an information based on a "go by," an example used in a prior case, and someone just may not have checked to see if the law was updated in the form that was filed. On the other hand, it's also quite possible that the Sheriff's office just goofed from the beginning, and that charges were filed based on a mistaken understanding of the law. Stay tuned.
LCB (mail):
Just a nit to pick...he isn't a "state" prosecutor...he was a City Prosecutor for the City of Hamilton, OH.

[OK Comments: Thanks, I have made the correction. Probably better to e-mail such nits, as I see them a bit sooner, but it's appreciated either way.]
11.22.2006 3:39pm
Charlie (Colorado) (mail):
Can you honestly be indecently exposed if there's no one there to see you?
11.22.2006 3:40pm
elChato (mail):
I don't know why Dwyer would O.K. would doubt Dwyer's word on why they dismissed- what good would it do him to lie? It sounds like a reasonable explanation. Though the statement, "sheriff's Capt. Katie McMahon didn't notice the problem at the time" points out why it's good to have a lawyer involved in filing charges (not that I haven't seen lawyers refer to superseded or repealed statutes).

I found this enigmatic and amusing:

"Blauvelt's lawyer, Mike Gmoser, railed against some officials' use of the term "technicality," and hung up on a reporter who sought more information.
11.22.2006 4:23pm
Richard Gould-Saltman (mail):
I recall that others have voiced a similar thought in response to the original posting, but DON'T THE SHERIFF AND SHERIFF'S ATTORNEY (I assume something like a City Attorney in California) HAVE ANYTHING AT ALL TO BETTER TO DO WITH THEIR TAXPAYER-COMPENSATED TIME!!?!?!

(calms self, stops gesticulating and screaming...)
Did I miss the news? Has there been a sudden rash of public officials gamboling about jay-bird nekkid after hours in public buildings in southern Ohio, deliberately flashing scandalized security-camera-monitoring guards, such that this poor admittedly-not-all-there putz needs to be made a further example of, in order to deter the rest of those secret naturist civil servants from further inflicting their depravity upon the world?

If so, life has gotten livelier there since I graduated from OSU in 1975 . . .

If these guys have nothing but time on their hands, couldn't they be loaned to Louisiana, which really does need help in putting its legal system back together?



r gould-saltman
11.22.2006 4:59pm
OrinKerr:
elChato,

I don't doubt the government's word on why they dismissed; as I read the story, the Judge dismissed, not the government, and I think we all agree that this was proper. I'm just not entirely sure I believe that the sheriff's office made the charging decision based on the proper statute. The reason for my skepticism is that I find the charges quite weak given the element of physical proximity; my prior post provides the details. One plausible explanation of what happened is that the government just goofed.
11.22.2006 5:19pm
PersonFromPorlock:

Can you honestly be indecently exposed if there's no one there to see you?

Bishop Berkeley, please call the office!
11.22.2006 7:25pm
Hank:
What a sick society this is to prosecute a guy with mental problems who has already been fired from his job. And this is while the Third Circuit is hearing an appeal of the FCC's fine of a broadcast station because Janet Jackson revealed one of her breasts, and top legal minds are arguing over whether it was "indecent." Try to imagine a historian a couple of centuries from now trying to figure out this nation's insanity. (Of course, that historian's society will have its own insanities; one cannot expect the human race to progress.)
11.22.2006 8:30pm
Hank:
What a sick society this is to prosecute a guy with mental problems who has already been fired from his job. And this is while the Third Circuit is hearing an appeal of the FCC's fine of a broadcast station because Janet Jackson revealed one of her breasts, and top legal minds are arguing over whether it was "indecent." Try to imagine a historian a couple of centuries from now trying to figure out this nation's insanity. (Of course, that historian's society will have its own insanities; one cannot expect the human race to progress.)
11.22.2006 8:30pm
Donald (mail):
Hank,

I imagine that in the ordinary course, this wouldn't have been prosecuted. I think, though, the Butler County Sheriff's Office made a decision that NOT charging would leave both the BCSO and the prosecutor's office open to charges that Blauvelt got a pass because he's a prosecutor.
11.22.2006 8:58pm
Dave Hardy (mail) (www):
Indecent exposure where no one was present ... and an insanity plea, by an attorney, to a misdemeanor....

Doesn't this case qualify for dismissal under the "too wierd to adjudicate" rule? It's not in California, after all.
11.23.2006 12:04am
OrinKerr:
Dave,

Sounds right to me.
11.23.2006 1:36am
D K Warren (mail):
Although it’s hard to piece together the facts from the various news reports of this story, it seems like the speedy trial rule would be an issue at this point.

He was charged with a fourth degree misdemeanor under Ohio law (R.C. § 2907.09 , Public Indecency). It’s a fourth degree misdemeanor in his case because I’m assuming he doesn’t have any prior convictions under that section (under the statute, it rises to a first degree misdemeanor depending on how many prior convictions you have for similar conduct).

A defendant should be brought to trial in Ohio within 45 days for misdemeanors of the third & fourth degree (R.C. § 2945.71(B)(1)). The day of the arrest isn’t counted in computing the statutory time for bringing a defendant to trial. State v. Lautenslager, 677 N.E.2d 1263 (Ohio App. 1996).

According to the original story, Blauvelt was arrested on Monday, October 10, 2006. Not counting that day, 45 days would expire on November 24, 2006. A voluntary dismissal, closely followed by new criminal charges based on the same conduct which gave rise to the original charge, cannot avoid the speedy trial rule. Cleveland Metro. Park Dist. v. Malham, 1985 WL 8435 (Ohio App. 8 Dist. Nov. 21, 1985) (indecent exposure case involving procedural facts very similar to the current case).

The Ohio Supreme Court, however, has ruled that the speedy trial statute runs against the state only during the time in which charges are actually pending. The statute is tolled during the time period between the original dismissal of charges and the subsequent refiling of new charges based upon the same underlying facts as the original charges, UNLESS the defendant is being held in jail or released on bail. State v. Broughton, 581 N.E.2d 541 (Ohio 1991). Also, Westlake v. Cougill, 383 N.E.2d 599 (Ohio 1978) (tolling the speedy-trial statute during the time period between a nolle prosequi of a misdemeanor charge and the service of summons of a second filing of a misdemeanor charge arising out of the same conduct, since no charge was pending against the defendant during that period).

Assuming he was ROR’d and not out on bail, if the original charges were dropped on Tuesday 11/21, that would appear to give them an additional 3 days to bring him to trial once they refile the new charges.

In other states, there are “recapture periods” or windows of opportunity for the State to bring a case to trial after the speedy trial deadline has passed (i.e. – the defendant is first required to file notice of the expiration of speedy trial & the case must then be brought to trial within 15 days from that date; Fla. R. Crim. P. 3.191). But except for incarcerated defendants (R.C. 2941.401), Ohio doesn’t appear to have a similar provision (R.C. 2945.72). State v. Sanchez, 853 N.E.2d 283 (Ohio 2006) (speedy trial provisions are mandatory and a person not brought to trial within the relevant time constraints must be discharged and further criminal proceedings based on the same conduct are barred); State v. Mays, 671 N.E.2d 553, 560 (Ohio App. 1996) (Ohio speedy trial statute is mandatory and must be strictly construed against the state; upon expiration of statutory limit, defendant has established a prime facie case for dismissal; failure of state to comply with mandates of rule requires discharge of defendant).

In any event, unless Blauvelt waived the speedy trial requirements, State v. Clark, 667 N.E.2d 1262 (Ohio App. 1995), the clock is ticking dangerously close to a discharge for the prosecution in this case.
11.23.2006 3:08am
professays (mail):
So now everyone should stay dressed in order to avoid being charged with indecent exposure and get fired.
11.23.2006 4:59am
Strom Thurmond (mail):
Think about the poor guy(or girl!) who has to monitor the surveilance tapes. Theres no such thing as a victimless crime.
11.23.2006 10:19am
Informant (mail):
If I'm ever in Ohio, remind me not to take my clothes off until I get back out of the state.
11.24.2006 12:30am
ReaderY:
If the text of the constitution needn't impede the needs of the day, I suppose there's no reason the text of statutes should either. After all, we no what we want -- and we know who's guilty, too. No need for nit-picking technicalities.
11.24.2006 3:13am
SimonD (www):
If I'm reading this right, the threshold question under the amended law is whether "the offense of public indecency" can occur other than in "physical proximity" to another person who is unrelated to the suspect. Ohio Rev. Code § 2907.09(A) ("No 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[,] ... [e]xpose his or her private parts") (emphasis added). There is no indication in the story that there were any physical witnesses, and so to convict this man, surely the court would have to hold that as a matter of law, a video camera constitutes a "person" capable of viewing an action? Even assuming that the accused was aware of the video cameras, he cannot have had any specific knowledge as to whether anyone was watching the video feed at that moment, and so wouldn't it have to be the mere presence of a camera that met the threshold requirement of a person? And if that's right, what other consequences might that have?
11.24.2006 9:11am
D K Warren (mail):
The statute sets a standard of recklessness and only requires that the person's conduct is "likely" to be seen by others who are within the suspect's physical proximity, not that others must be physically present and "actually" witness it.

If a person recklessly puts themselves in a situation where they're exposing themselves and there's a reasonable risk that others will run into them & be offended, the elements are satisfied.

The Ohio Legislature's analysis of the 2005 amendment at issue (adding the element of physical proximity) is available at the following link:
http://www.lsc.state.oh.us/analyses126/05-hb50-126.pdf

Under the canons of statutory construction, a statute is to be read in a way that gives meaning to each word or phrase, rather than making some of them redundant. East Ohio Gas Co. v. Pub. Util. Comm., 530 N.E.2d 875 (Ohio 1988).

D.A.B.E., Inc. v. Bd. of Health, 773 N.E.2d 536 (Ohio 2002) (words and phrases used by the General Assembly are to be given their usual and ordinary meaning unless a contrary intention of the legislature clearly appears); Herman v. Kopfleisch, 651 N.E.2d 995 (Ohio 1995) (a statute that is facially definite and unambiguous is to be applied as written and not construed).

The fact that this incident was captured by a security surveillance camera may be unnecessarily muddying the waters. Again, nothing in the statue requires that someone else actually see the incident – it's enough if the person recklessly exposes themselves under circumstances where that's likely (i.e. – it's a reasonable possibility).

The fact that the government building was closed to the general public doesn't mean no one else except Blauvelt had access to it. Cleaning personnel, other employees who were working late or stopping by for various job-related reasons, security patrols, and a host of other individuals had access to the building during the time in question.

It would be an entirely different scenario if he were parading around nude while locked inside his office. That might be completely defensible against these charges. But to wander the hallways and open corridors of the office building created more than a reasonable likelihood (i.e. – it was "likely") that he'd run into other people while exposing himself.

Whether someone watching his actions in real time via a video surveillance camera satisfies the "physical proximity" element may be immaterial. It's worth noting that in other contexts, constructive presence can satisfy the element of proximity. See e.g., State v. McClees, 424 S.E.2d786 (N.C. App. 1993) (voyeurism via video surveillance essentially gave the defendant the same capability of viewing the victim in a state of undress as he would have had were he physically present in the room. "Through the forces of modern electronic technology, namely the video camcorder, one can constructively place himself in the 'presence' of another. Thus we find that defendant was 'constructively present' ".).

Nonetheless, "It is one of the well recognized canons of statutory construction that when a statute directs a thing may be done by a specified means or in a particular manner it may not be done by other means or in a different manner." Akron Transp. Co. v. Glander, 99 N.E.2d 493, 497 (Ohio 1951).

Accordingly, all that's required is for the suspect to expose themselves under circumstances where someone else in the area is "likely" to witness it and be offended. There was a better-than-average chance that he'd run into someone while wandering the halls of that government complex, and certainly his conduct could be considered reckless.

Cf., State v. Armengau, 1998 WL 275049 (Ohio App. 1998) (recklessness not proven by State when bar patron urinated in public after being unable to wait for long line at the restroom; defendant took deliberate & extensive precautions to shield himself from public view, and was discovered by police only after they took extraordinary steps to view his actions; actions which were otherwise not observable by casual passersby).

R.C. 2901.22(C) ("A person acts recklessly when he perversely disregards a known risk that his conduct is likely to cause a certain result or is likely to cause a certain result or is likely to be of a certain nature."). Whether he didn't intend to encounter or offend anyone, or believed no one else was in the building is irrelevant. State v. Davis, 762 N.E.2d 1027 (Ohio App. 2001) (mental state of recklessness does not involve specific intent). Moreover, since the State would be showing that his conduct was reckless, they're allowed to question about his prior reported incidents of exposure. State v. Docie, 2001 WL 1123933 at *8 (Ohio App. 2001).
11.25.2006 5:13pm
R Gould-Saltman (mail):
Ah, per D. K. Warren's exegesis, as I suspected, the Ohio Legislature (having nothing more productive, like keeping an eye on pension fund investments in coin collections, to pursue) was after making indecent exposure essentially a "negligence" crime. I assume that, for their tastes, far too many indecent exposure beefs had gone south because of various other jurisdictions' "intent" or "purpose" requirements, e.g. that defendant's flashing be with the intent to amuse himself, or at least to annoy others.

This so troubled them that they apparently devoted serious effort to writing a statute which now puts all on notice that before trotting out and airing the family jewels, for whatever reason, misdemeanants better consider and ponder, long and hard, who might reasonably be expected to stumble into their undraped physical proximity. . .

One of the silliest statutes I've seen in a while.


rfgs
11.26.2006 2:18am
David Chesler (mail) (www):
The statute sets a standard of recklessness and only requires that the person's conduct is "likely" to be seen by others who are within the suspect's physical proximity, not that others must be physically present and "actually" witness it.

It can also be read (reasonably, IMHO) that "likely" only modifies "to be viewed by". If the set of "others who are in the person's physical proximity" is empty, then it does not matter how unlikely that circumstance is, nor does it matter how likely it is that if (in a situation contrary to fact) there were people nearby they would or would not view the offensive nakedness.

In support of this, "who are not members of the person's household" clearly further modifies (by restriction) the affronted folks, and that's pretty much a black or white question, so it would nonsensical for that restriction to be included in the parts that are "likely".

That is, if the victim of the flashing happened to be distracted and looked away at the moment of the flash, or if the victim happened to be a voyeur who is not affronted by the nakedness it doesn't matter, because it was likely that when the actor opened his trenchcoat the victim would have been looking and would have been affronted.

In the bigger picture, I don't understand why somebody didn't just remind the prosecutor that there was a video camera in the room. (It is possible to flash a camera -- search for "Flash Mountain" for Disney incidents.)
11.27.2006 1:25pm
D K Warren (mail):
If a tree falls in the woods & no one's around to hear it, does it still make a sound?

Yes.

If someone exposes themselves out in the open & no one's around to see it, can it still be a crime under Ohio law?

Once again, yes.

While this statute may not be a paragon of legislative draftsmanship, by dissecting & rephrasing it we can discern a clear reading.

To violate the law you must:

* Recklessly expose yourself (as opposed to accidentally or out of necessity);
* In a place and at a time (i.e. – the "under circumstances" element);
* Where it's likely to be seen (no requirement that it actually be seen);
* By others who are in the area (the "physical proximity" requirement).

Proximity is not the same as presence. Proximity is defined as near or imminent. Presence, on the other hand, is defined as being actually present or in close view. Presence implies a closer boundary of at least visual contact, whereas proximity includes a broader range or area outside of actual presence. The addition of "physical" proximity then narrows the factual scenarios which the law can be applied to. For example, it eliminates any after-the-fact viewing or remote surveillance of the incident.

Board of Ed. V. Gluckenberger, 100 N.E.2d 304 (Ohio 1951) (the legislature must be assumed or presumed to know the meaning of words, to have used the words of a statute advisedly and to have expressed legislative intent by the use of the words found in the statute); Hoffman v. State Medical Bd. of Ohio, 2005 WL 1693623 at *5 (Ohio App. 2005) (discussing the deliberate choice of words by the legislature when drafting laws); State v. Ohio Bureau of Motor Vehicles, 1998 WL 634707 at *2 (Ohio App. 1998) (the legislature has a reason for using specific language).

Putting it all together, the physical proximity element requires an actual, or the imminent potential for an actual, real-time, in-person encounter with the suspect. The law seeks to punish indecent conduct which puts others at risk of viewing it in-person as it occurs.

Normally, if you recklessly expose yourself when no one else is around to see it there's no evidence to charge the crime with in the first place. This case has a wrinkle because the surveillance video made a record of the incident. But it's not the video (or whether a video cam is the equivalent of a person) or the viewing of the video by a security guard that serves as the basis of the crime. That provides the necessary evidence for the charges to be filed, but it's the defendant's actions that are at issue.

Namely, he walked nude through the hallways of a government building under circumstances where it was likely that others in the area would be offended by his conduct. Even if there was a reduced risk of running into other people after-hours, his conduct still satisfies the threshold of recklessness.

But all of this is, ultimately, academic.

Even assuming that the law requires other people to actually be present at the time of the exposure, his conduct would still be attempted public indecency & he'd be subject to the same exact penalty under Ohio law. State v. Deem, 533 N.E.2d 294 (Ohio 1988); R.C. 2945.74 (attempt as a lesser charge); R.C. 2923.02(E) (attempted misdemeanors of all degrees become fourth degree misdemeanors); State v. Russell, 2000 WL 1547085 at *5 (Ohio App. 2000) (charging the principal offense charges an attempt by implication).
11.28.2006 1:11am
David Chesler (mail) (www):
Even if there was a reduced risk of running into other people after-hours, his conduct still satisfies the threshold of recklessness.

Does "likely" mean "a non-zero chance"?
11.28.2006 12:56pm