[Cite as State v. Sparks, 2019-Ohio-3145.]

IN THE COURT OF APPEALS 

TWELFTH APPELLATE DISTRICT OF OHIO 

BUTLER COUNTY 

STATE OF OHIO, 

 Appellee, 

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AGYEMANG SPARKS, 

 Appellant. 

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CASE NO. CA2018-11-226 

O P I N I O N 

8/5/2019 

CRIMINAL APPEAL FROM BUTLER COUNTY AREA III COURT 

Case No. CRB1800332 

Michael T. Gmoser, Butler County Prosecuting Attorney, Michael Greer, Government 

Services Center, 315 High Street, 11th Floor, Hamilton, Ohio 45011, for appellee 

Scott N. Blauvelt, 315 South Monument, Hamilton, Ohio 45011, for appellant 

 S. POWELL, P.J.

{¶ 1} Appellant, Agyemang Sparks, appeals the guilty finding and 30-day jail 

sentence he received from the Butler County Area III Court after the trial court found him 

guilty of one count of public indecency. For the reasons outlined below, we affirm Sparks' 

conviction but reverse and remand this matter to the trial court for the limited purpose of 

resentencing. 
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{¶ 2} Sparks was charged by private complaint with one count of public indecency 

in violation of R.C. 2907.09(A)(1), a fourth-degree misdemeanor. The charges arose after 

the victim, B.C., alleged Sparks exposed his penis to her while they were at work. The 

matter ultimately proceeded to a one-day bench trial. During trial, both Sparks and B.C. 

testified. As part of her testimony, B.C. testified that Sparks "revealed himself" to her on 

three separate occasions by lifting up his sweatshirt and showing her his exposed penis. 

B.C. testified Sparks did this "very discretely" from approximately one to two feet away. 

Although Sparks denied ever showing his penis to B.C., the trial court nevertheless found 

Sparks guilty upon finding B.C.'s testimony "very credible," "truthful," "candid," and "honest." 

The trial court then sentenced Sparks to 30 days in jail, with 20 of those days suspended, 

and ordered Sparks to pay a $150 fine. 

{¶ 3} Sparks now appeals his conviction and 30-day jail sentence, raising two 

assignments of error for review.1

{¶ 4} Assignment of Error No. 1: 

{¶ 5} APPELLANT'S CONVICTION WAS CONTRARY TO THE MANIFEST 

WEIGHT OF THE EVIDENCE. 

{¶ 6} In his first assignment of error, Sparks argues his conviction must be reversed 

because it was against the manifest weight of the evidence. We disagree. 

{¶ 7} "A verdict can be against the manifest weight of the evidence even though 

legally sufficient evidence supports it." State v. Myers, 154 Ohio St.3d 405, 2018-Ohio1903, ¶ 140. A manifest weight of the evidence challenge examines the "inclination of the 

greater amount of credible evidence, offered at a trial, to support one side of the issue rather 

than the other." State v. Barnett, 12th Dist. Butler No. CA2011-09-177, 2012-Ohio-2372, ¶ 

 

1. We note that the trial court granted Sparks' motion to stay his 30-day jail sentence pending appeal. 
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14. To determine whether a conviction is against the manifest weight of the evidence, this 

court must look at the entire record, weigh the evidence and all reasonable inferences, 

consider the credibility of the witnesses, and determine whether in resolving the conflicts in 

the evidence, the trier of fact clearly lost its way and created such a manifest miscarriage 

of justice that the conviction must be reversed and a new trial ordered. State v. Wilks, 154 

Ohio St.3d 359, 2018-Ohio-1562, ¶ 168. This court will overturn a conviction due to the 

manifest weight of the evidence only in extraordinary circumstances when the evidence 

presented at trial weighs heavily in favor of acquittal. State v. Morgan, 12th Dist. Butler 

Nos. CA2013-08-146 and CA2013-08-147, 2014-Ohio-2472, ¶ 34. 

{¶ 8} As noted above, Sparks was convicted of public indecency in violation of R.C. 

2907.09(A)(1). Pursuant to that statute, no person shall "recklessly" expose his or her 

"private parts" under circumstances where 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." The Ohio Revised Code "does not specifically define the term 

'private parts.'" State v. Mackie, 12th Dist. Warren No. CA2010-08-080, 2011-Ohio-2102, 

¶ 20. The Ohio Jury Instructions manual nevertheless defines the term to mean "genitals." 

State v. Jetter, 74 Ohio App.3d 535, 536, fn. 1 (1st Dist.1991), citing 4 Ohio Jury Instructions 

(1991), Section 507.09. This would include Sparks' penis. 

{¶ 9} Sparks argues his conviction must be reversed because B.C.'s testimony that 

he exposed his penis to her at work lacked credibility. To support this claim, Sparks raises 

a series of questions he believes prove the trial court erred by finding B.C.'s testimony 

credible. This includes questions as to why their employer did not take "more serious 

action" against him if its investigation revealed any truth to B.C.'s claims, why the security 

cameras installed in their work area were inoperable at the times when B.C. claims he 

exposed his penis to her, and why the police did not pursue charges against him. Sparks 
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also claims B.C.'s testimony lacks credibility when considering B.C. has not ruled out 

bringing legal action against her now former employer.2 Therefore, because he denied ever 

exposing his penis to B.C., Sparks argues it was improper for the trial court to find him 

guilty. 

{¶ 10} Sparks' claims lack merit. While Sparks argues B.C.'s testimony lacked 

credibility, the trial court, as the trier of fact, was free to believe all, part, or none of B.C.'s 

testimony. State v. Davis, 12th Dist. Butler No. CA2017-04-049, 2017-Ohio-8535, ¶ 20. 

This includes B.C.'s testimony that Sparks exposed his penis to her on three separate 

occasions while they were at work. It is well-established that it is the trier of fact – and not 

this court on appeal – that makes determinations of credibility and the weight to be given to 

the evidence presented at trial. State v. Erickson, 12th Dist. Warren No. CA2014-10-131, 

2015-Ohio-2086, ¶ 42, citing State v. DeHass, 10 Ohio St.2d 230, 227 (1967), paragraph 

one of the syllabus. That is to say this court will not substitute its evaluation of B.C.'s 

credibility for that of the trial court. State v. Kellum, 12th Dist. Clinton No. CA97-11-012, 

1998 Ohio App. LEXIS 2779, *13-14 (June 22, 1998). 

{¶ 11} It is equally well-established that a conviction is not against the manifest 

weight of the evidence simply because the trier of fact believed the testimony offered by the 

prosecution. State v. Crossty, 12th Dist. Clermont Nos. CA2017-01-003 thru CA2017-01-

005, 2017-Ohio-8267, ¶ 68. "As the trier of fact is in the best position to judge the credibility 

of the witnesses, we will not disturb the trial court's finding in regard to which version of 

events was credible, and which was not." State v. Bonner, 12th Dist. Butler No. CA2012-

09-195, 2013-Ohio-3670, ¶ 13. Therefore, because this is not one of those extraordinary 

 

2. B.C. testified she no longer works for the company where she was employed when Sparks exposed his 

penis to her because she "wasn't happy with the company after all of this went on." Sparks testified he also 

no longer works for that company after "[he] got [himself] fired" because he could no longer complete his job 

responsibilities due to pressure put on him by B.C.'s "operatives," her friends, and her supervisor. 
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circumstances where the evidence presented at trial weighed heavily in favor of acquittal, 

Sparks' conviction was not against the manifest weight of the evidence. See, e.g., State v. 

Osborne, 5th Dist. Muskingum No. CA 92-4, 1992 Ohio App. LEXIS 6181, *6-7 (Dec. 4, 

1992) (conviction for public indecency was not against the manifest weight of the evidence 

where "the jury could reasonably conclude that appellant was aware that his penis was out 

of his pants when he lifted his shirt, and it was not an accident"). Accordingly, finding no 

error in the trial court's decision, Sparks' first assignment of error lacks merit and is 

overruled. 

{¶ 12} Assignment of Error No. 2: 

{¶ 13} THE TRIAL COURT ERRED TO THE PREJUDICE OF APPELLANT WHERE 

THE RECORD DOES NOT DEMONSTRATE THAT APPELLANT WAS GIVEN AN 

OPPORTUNITY FOR ALLOCUTION AT SENTENCING. 

{¶ 14} In his second assignment of error, Sparks argues the trial court erred by 

denying him his right to allocution prior to issuing its sentencing decision. The state 

concedes, and we agree, that the trial court did not address Sparks personally and ask if 

he wished to make a statement on his behalf or present any information in mitigation of 

punishment prior to sentencing as required by Crim.R. 32(A)(1). Although not considered 

a constitutional right, "the right of allocution is firmly rooted in the common-law tradition." 

State v. Copeland, 12th Dist. Butler No. CA2007-02-039, 2007-Ohio-6168, ¶ 6. This right 

is "both absolute and not subject to waiver due to a defendant's failure to object." State v. 

Haynes, 12th Dist. Butler No. CA2010-10-273, 2011-Ohio-5743, ¶ 27. Therefore, because 

the trial court erred by denying Sparks his right to allocution prior to issuing its sentencing 

decision, Sparks' second assignment of error is sustained and this matter is reversed and 

remanded to the trial court for the limited purpose of resentencing. 

{¶ 15} Judgment reversed as to sentencing only and remanded to the trial court for 
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the limited purpose of resentencing. Upon remand, the trial court is instructed to personally 

address Sparks and ask him if he wishes to make a statement on his own behalf or present 

any information in mitigation of punishment before imposing a sentence. In all other 

respects, the trial court's judgment is affirmed. 

 PIPER and M. POWELL, JJ., concur.